COUNTER-TERRORISM LEGISLATION AMENDMENT (FOREIGN FIGHTERS) BILL 2014

2013-2014

The Parliament of the

Commonwealth of Australia

THE SENATE

Presented and read a first time

Counter-Terrorism Legislation

Amendment (Foreign Fighters) Bill 2014

No. , 2014

(Attorney-General)

A Bill for an Act to amend the law relating to

counter-terrorism and other matters, and for

related purposes

No. , 2014

Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill

2014

Contents

Short title ........................................................................................... 1

Commencement ................................................................................. 1

Schedules ........................................................................................... 3

Schedule 1--Main counter-terrorism amendments

Part 1--Amendments

Administrative Decisions (Judicial Review) Act 1977

Anti-Money Laundering and Counter-Terrorism Financing Act 2006

AusCheck Act 2007

Australian Passports Act 2005

Australian Security Intelligence Organisation Act 1979

Crimes Act 1914

Criminal Code Act 1995

Customs Act 1901

Foreign Evidence Act 1994

Foreign Passports (Law Enforcement and Security) Act 2005

102

Intelligence Services Act 2001

104

National Health Security Act 2007

105

Proceeds of Crime Act 2002

105

Sea Installations Act 1987

105

Telecommunications (Interception and Access) Act 1979

105

Terrorism Insurance Act 2003

106

Part 2--Repeals

107

Crimes (Foreign Incursions and Recruitment) Act 1978

107

Schedule 2--Stopping welfare payments

108

Part 1--Main amendments

108

A New Tax System (Family Assistance) Act 1999

108

Paid Parental Leave Act 2010

113

Social Security Act 1991

117

Social Security (Administration) Act 1999

121

Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill

2014

No. , 2014

Part 2--Other amendments

122

Administrative Decisions (Judicial Review) Act 1977

122

Part 3--Application provisions

123

Schedule 3--Customs' detention powers

124

Customs Act 1901

124

Schedule 4--Cancelling visas on security grounds

128

Part 1--Amendment of the Migration Act 1958

128

Division 1--Amendments

128

Division 2--Application of amendments made by Part 1

131

Part 2--Amendment of the Australian Security Intelligence

Organisation Act 1979

132

Schedule 5--Identifying persons in immigration clearance

133

Part 1--Amendment of the Migration Act 1958

133

Part 2--Application of amendments

143

Schedule 6--Identifying persons entering or leaving Australia

through advance passenger processing

144

Part 1--Amendment of the Migration Act 1958

144

Division 1--Amendments

144

Division 2--Application of amendments made by Part 1

148

Part 2--Amendment of the Customs Act 1901

150

Schedule 7--Seizing bogus documents

151

Part 1--Amendment of the Migration Act 1958

151

Division 1--Main amendments

151

Division 2--Contingent amendments

154

Division 3--Application of amendments made by Part 1

154

Part 2--Amendment of the Australian Citizenship Act 2007

155

Division 1--Main amendments

155

Division 2--Contingent amendments

157

No. , 2014

Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill

2014

A Bill for an Act to amend the law relating to

counter-terrorism and other matters, and for

related purposes

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Counter-Terrorism Legislation

Amendment (Foreign Fighters) Act 2014.

2 Commencement

(1) Each provision of this Act specified in column 1 of the table

commences, or is taken to have commenced, in accordance with

column 2 of the table. Any other statement in column 2 has effect

according to its terms.

Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill

2014

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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

and 2

The 28th day after this Act receives the

Royal Assent.

3. Schedules 3 to

The day after this Act receives the Royal

Assent.

4. Schedule 6

1 July 2015.

1 July 2015

5. Schedule 7,

items 1 to 3

The day after this Act receives the Royal

Assent.

6. Schedule 7,

item 4

Immediately after the commencement of the

provisions covered by table item 1.

However, if item 2 of Schedule 1 to the

Migration Amendment (Protection and

Other Measures) Act 2014 commences

before that time, the provisions do not

commence at all.

7. Schedule 7,

item 5

Immediately after the commencement of

item 2 of Schedule 1 to the Migration

Amendment (Protection and Other

Measures) Act 2014 (the related item).

However, if the related item commences

before the commencement of the provisions

covered by table item 1, the provisions do

not commence at all.

8. Schedule 7,

item 6

The day after this Act receives the Royal

Assent.

9. Schedule 7,

item 7

The day after this Act receives the Royal

Assent.

However, if item 2 of Schedule 1 to the

Migration Amendment (Protection and

Other Measures) Act 2014 has not

No. , 2014

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2014

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

commenced before that day, the provisions

do not commence at all.

10. Schedule 7,

item 8

The day after this Act receives the Royal

Assent.

11. Schedule 7,

item 9

The day after this Act receives the Royal

Assent.

However, if item 2 of Schedule 1 to the

Migration Amendment (Protection and

Other Measures) Act 2014 has commenced

before that day, the provisions do not

commence at all.

12. Schedule 7,

item 10

Immediately after the commencement of

item 2 of Schedule 1 to the Migration

Amendment (Protection and Other

Measures) Act 2014 (the related item).

However, if the related item commences

before the commencement of the provisions

covered by table item 6, the provisions do

not commence at all.

13. Schedule 7,

item 11

The day after this Act receives the Royal

Assent.

Note:

This table relates only to the provisions of this Act as originally

enacted. It will not be amended to deal with any later amendments of

this Act.

(2) Any information in column 3 of the table is not part of this Act.

Information may be inserted in this column, or information in it

may be edited, in any published version of this Act.

3 Schedules

Legislation that is specified in a Schedule to this Act is amended or

repealed as set out in the applicable items in the Schedule

concerned, and any other item in a Schedule to this Act has effect

according to its terms.

Schedule 1 Main counter-terrorism amendments

Part 1 Amendments

Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill

2014

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Schedule 1

--Main counter-terrorism

amendments

Part 1

--Amendments

Administrative Decisions (Judicial Review) Act 1977

1 After paragraph (db) of Schedule 1

Insert:

(dc) decisions under section 22A or 24A of the Australian

Passports Act 2005;

(dd) decisions under section 15A or 16A of the Foreign Passports

(Law Enforcement and Security) Act 2005;

Anti-Money Laundering and Counter-Terrorism Financing

Act 2006

2 Section 5

Insert:

Attorney-General's Department means the Department

administered by the Attorney-General.

3 Section 5 (after paragraph (ha) of the definition of

designated agency)

Insert:

(hb) the Attorney-General's Department; or

4 Application of amendments

(1)

The amendments of section 5 of the Anti-Money Laundering and

Counter-Terrorism Financing Act 2006 made by this Schedule apply in

relation to disclosures of, and access to, information after this item

commences, whether the information was obtained before, on or after

that commencement.

(2)

For the purposes of the Anti-Money Laundering and Counter-Terrorism

Financing Act 2006, if information is disclosed in accordance with a

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2014

provision of that Act to an official of the Attorney-General's

Department before this item commences, the information is taken to

have been disclosed to an official of a designated agency.

5 Paragraph 121(2)(a)

Omit "section 49 or".

6 Paragraphs 122(1)(a), (b), (c) and (d)

Repeal the paragraphs.

7 Paragraphs 122(3)(a), (c) and (d)

Repeal the paragraphs.

8 Application of amendments

The amendments of sections 121 and 122 of the Anti-Money

Laundering and Counter-Terrorism Financing Act 2006 made by this

Schedule apply in relation to disclosures of information after this item

commences, whether the information was obtained before, on or after

that commencement.

AusCheck Act 2007

9 Paragraph 8(2)(d)

After "5.3", insert "or 5.5".

10 Paragraph 8(2)(d)

Omit "deals with terrorism", substitute "deal with terrorism, foreign

incursions and recruitment".

Australian Passports Act 2005

11 Subsection 6(1)

Insert:

ASIO means the Australian Security Intelligence Organisation.

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12 Section 17 (heading)

Repeal the heading, substitute:

17 Reasons relating to concurrently valid or suspended Australian

travel document

13 At the end of subsection 17(1)

Add "or is suspended under section 22A".

14 Division 3 of Part 2 (heading)

Repeal the heading, substitute:

Division 3--When Australian travel documents are not

valid

15 Section 20 (heading)

Repeal the heading, substitute:

20 When Australian passports are not valid

Cessation of validity

16 At the end of section 20

Add:

Suspension of validity

(3) An Australian passport is not valid while it is suspended under

section 22A.

17 Section 21 (heading)

Repeal the heading, substitute:

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21 When travel-related documents are not valid

Cessation of validity

18 Section 21

Before "A travel-related document", insert "(1)".

19 At the end of section 21

Add:

Suspension of validity

(2) A travel-related document is not valid while it is suspended under

section 22A.

20 At the end of section 22

Add:

(3) To avoid doubt, the suspension of an Australian travel document

does not prevent the Minister from cancelling it.

21 At the end of Division 3 of Part 2

Add:

22A Suspension of Australian travel document

(1) The Minister may, on request under subsection (2), suspend for 14

days all Australian travel documents that have been issued to a

person.

(2) ASIO may request the Minister to suspend all Australian travel

documents issued to a person if it suspects on reasonable grounds

that:

(a) the person may leave Australia to engage in conduct that

might prejudice the security of Australia or a foreign country;

and

(b) all the person's Australian travel documents should be

suspended in order to prevent the person from engaging in

the conduct.

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(3) If an Australian travel document of a person has been suspended

under subsection (1), ASIO must not make another request under

subsection (2) relating to the person unless the grounds for ASIO's

suspicion mentioned in subsection (2) include information ASIO

obtained after the end of the suspension.

22 At the end of paragraph 24(1)(b)

Add "except because of a suspension under section 22A".

23 After section 24

Insert:

24A Demand for surrender of suspended Australian travel

document

(1) An officer may demand that a person surrender an Australian travel

document to the officer if the document is suspended under

section 22A.

(2) A person commits an offence if:

(a) an officer demands under subsection (1) that the person

surrender an Australian travel document; and

(b) the officer informs the person that the officer is authorised to

demand that document; and

comply with the demand; and

(d) the person has possession or control of the document; and

(e) the person fails to surrender the document to the officer

immediately.

Penalty: Imprisonment for 6 months or 10 penalty units, or both.

(3) An Australian travel document obtained by an officer under this

section must be returned, to the person to whom it was issued, at

the end of the period for which it is suspended, unless it is

cancelled.

24 Section 48 (note)

Omit "Under section 27A", substitute "Except in cases described in

section 48A of this Act, under section 27A".

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25 After section 48

Insert:

48A When notice of refusal or cancellation of Australian travel

document is not required

Application

(1) This section sets out when the Minister is not required to notify a

person of a decision by the Minister to do either of the following

because of a refusal/cancellation request made under

subsection 14(1):

(a) refuse to issue an Australian passport to the person;

(b) cancel an Australian travel document issued to the person.

Note:

This section applies to a delegate of the Minister in the same way as it

applies to the Minister: see paragraph 34AB(1)(c) of the Acts

Interpretation Act 1901.

Request by ASIO

(2) The Minister is not required to notify the person if:

(a) the request was made by ASIO or the Director-General of

Security; and

(b) there is in force a certificate under paragraph 38(2)(a) of the

Australian Security Intelligence Organisation Act 1979

relating to notice to the person of the making of the security

assessment that constituted the request.

Request by Australian Federal Police

(3) The Minister is not required to notify the person if:

(a) the request was made by a member or a special member of

the Australian Federal Police; and

(b) there is in force a certificate under subsection (4).

(4) If the Minister administering the Australian Federal Police Act

1979 is satisfied that notifying the person of the decision would

adversely affect a current investigation of any of the following

offences, that Minister may, by signed writing, certify accordingly:

Schedule 1 Main counter-terrorism amendments

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(a) an offence against Subdivision A of Division 72 of the

Criminal Code;

(b) an offence against Subdivision B of Division 80 of the

Criminal Code;

(d) an offence against either of the following provisions of the

Charter of the United Nations Act 1945:

(i) Part 4 of that Act;

(ii) Part 5 of that Act, to the extent that it relates to the

Charter of the United Nations (Sanctions--Al-Qaida)

Regulations 2008.

(5) A certificate under subsection (4) is not a legislative instrument.

(6) If the Minister administering the Australian Federal Police Act

1979 issues a certificate under subsection (4) or revokes a

certificate under that subsection, he or she must give a copy of the

certificate or revocation to the Minister administering this Act.

Overriding the Administrative Appeals Tribunal Act 1975

(7) This section has effect despite section 27A of the Administrative

Appeals Tribunal Act 1975.

Note:

If subsection (2) or (3) ceases to apply because a certificate mentioned

in that subsection ceases to be in force, section 27A of the

Administrative Appeals Tribunal Act 1975 (about notification) will

apply in relation to the decision (unless the other of those subsections

still applies).

26 After paragraph 51(1)(d)

Insert:

(da) section 22A;

Australian Security Intelligence Organisation Act 1979

27 Section 4 (paragraph (c) of the definition of politically

motivated violence)

Omit "the Crimes (Foreign Incursions and Recruitment) Act 1978",

substitute "Division 119 of the Criminal Code".

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28 Paragraph 34D(4)(b)

Repeal the paragraph, substitute:

(b) that, having regard to other methods (if any) of collecting the

intelligence that are likely to be as effective, it is reasonable

in all the circumstances for the warrant to be issued; and

29 Application of amendment

The amendment of subsection 34D(4) of the Australian Security

Intelligence Organisation Act 1979 made by this Schedule applies to the

giving of consent where that consent was sought on or after the

commencement of the amendment.

30 At the end of section 34L

Add:

(10) A person commits an offence if:

(a) the person has, in accordance with a warrant issued under this

Division, been requested to produce a record or thing; and

(b) the person engages in conduct; and

produced, or to be produced in wholly legible or usable form.

Penalty: Imprisonment for 5 years.

31 Application of subsection 34L(10) of the Australian

Security Intelligence Organisation Act 1979

Subsection 34L(10) of the Australian Security Intelligence

Organisation Act 1979 applies to conduct occurring on or after the

commencement of the subsection, whether the warrant was or is issued

under Division 3 of Part III of that Act before, on or after that

commencement.

32 Subsection 34V(3)

Repeal the subsection, substitute:

(3) Without limiting the operation of subsection (2), a police officer

must not, in the course of an act described in subsection (1) in

relation to a person, do anything that is likely to cause the death of,

or grievous bodily harm to, the person unless the officer believes

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on reasonable grounds that doing that thing is necessary to protect

life or to prevent serious injury to another person (including the

officer).

33 Section 34ZZ

Omit "2016", substitute "2026".

34 After paragraph 36(b)

Insert:

(ba) a security assessment that is a request under section 22A of

the Australian Passports Act 2005 for suspension of all

Australian travel documents issued to a person; or

Crimes Act 1914

35 Subsection 3(1) (after paragraph (a) of the definition of

terrorism offence)

Insert:

(aa) an offence against Subdivision B of Division 80 of the

Criminal Code; or

36 Subsection 3(1) (paragraph (b) of the definition of

terrorism offence)

After "Part 5.3", insert "or 5.5".

37 Subsection 3(1) (at the end of the definition of terrorism

offence)

Add:

; or (c) an offence against either of the following provisions of the

Charter of the United Nations Act 1945:

(i) Part 4 of that Act;

(ii) Part 5 of that Act, to the extent that it relates to the

Charter of the United Nations (Sanctions--Al-Qaida)

Regulations 2008.

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38 Application of amendments

The amendments of the definition of terrorism offence in

subsection 3(1) of the Crimes Act 1914 made by this Schedule apply in

relation to any terrorism offence, whether the offence occurs before, on

or after the commencement of this item.

39 Part IAA (heading)

Repeal the heading, substitute:

Part IAA--Search, information gathering, arrest

and related powers (other than powers

under delayed notification search

warrants)

40 Subsection 3C(1) (at the end of the definition of issuing

officer)

Add:

Note:

Under section 3ZZBJ, an eligible issuing officer (within the meaning

of Part IAAA) may, as specified in that section, consider and deal with

an application for a warrant as if the eligible issuing officer were an

issuing officer within the meaning of this Part.

41 Subsections 3D(1) and (2)

After "another law of the Commonwealth", insert "(including other

provisions of this Act)".

42 After subsection 3E(1)

Insert:

Note:

For the issue of delayed notification search warrants, see Part IAAA.

43 Subsection 3UK(1)

Omit "the end of 10 years after the day on which the Division

commences", substitute "15 December 2025".

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44 Subsection 3UK(2)

Omit "10 years after the day on which this Division commences",

substitute "15 December 2025".

45 Subsection 3UK(3)

Omit "the end of 10 years after the day on which this Division

commences", substitute "15 December 2025".

46 Subsection 3W(1)

After "offence" (first occurring), insert "(other than a terrorism offence

and an offence against section 80.2C of the Criminal Code)".

47 After section 3W

Insert:

3WA Constables' power of arrest without warrant for a terrorism

offence or offence of advocating terrorism

(1) A constable may, without warrant, arrest a person for a terrorism

offence or an offence against section 80.2C of the Criminal Code if

the constable suspects on reasonable grounds that:

(a) the person has committed or is committing the offence; and

(b) proceedings by summons against the person would not

achieve one or more of the following purposes:

(i) ensuring the appearance of the person before a court in

respect of the offence;

(ii) preventing a repetition or continuation of the offence or

the commission of another offence;

(iii) preventing the concealment, loss or destruction of

evidence relating to the offence;

(iv) preventing harassment of, or interference with, a person

who may be required to give evidence in proceedings in

respect of the offence;

(v) preventing the fabrication of evidence in respect of the

offence;

(vi) preserving the safety or welfare of the person.

(2) If:

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(a) a person has been arrested for an offence under

subsection (1); and

(b) before the person is charged with the offence, the constable

in charge of the investigation ceases to suspect on reasonable

grounds:

(i) that the person committed the offence; or

(ii) that holding the person in custody is necessary to

achieve a purpose referred to in paragraph (1)(b);

the person must be released.

48 Application of amendments

The amendment of section 3W of the Crimes Act 1914 made by this

Schedule, and section 3WA of that Act, apply to an arrest made after

this item commences (whether the alleged offence in relation to which

the arrest is made is believed or suspected of having been committed

before, on or after that commencement).

49 Paragraph 3ZB(2)(a)

After "section 3W", insert "or 3WA".

50 Paragraph 3ZQN(3)(e)

Repeal the paragraph, substitute:

(e) specify the day by which the person must comply with the

notice, being a day that is at least:

(i) 14 days after the giving of the notice; or

(ii) if the officer believes that it is appropriate, having

regard to the urgency of the situation, to specify an

earlier day--3 days after the giving of the notice; and

51 After Part IAA

Insert:

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No. , 2014

Part IAAA--Delayed notification search warrants

Division 1--Preliminary

3ZZAA Object of this Part

(1) The object of this Part is to provide for eligible agencies to obtain

search warrants:

(a) that relate to eligible offences; and

(b) that authorise the entry and search of premises without

having to produce the warrant at the time of entry and search.

(2) A warrant issued under this Part is a delayed notification search

warrant.

(3) An eligible agency is the Australian Federal Police.

(4) An eligible offence is a terrorism offence that is punishable on

conviction by imprisonment for 7 years or more.

3ZZAB Application of Part

(1) This Part is not intended to limit or exclude the operation of

another law of the Commonwealth (including other provisions of

this Act) relating to:

(a) the search of premises; or

(b) the seizure of things; or

(d) the installation of surveillance devices (within the meaning of

the Surveillance Devices Act 2004).

(2) To avoid doubt, it is declared that even though another law of the

Commonwealth provides power to do one or more of the things

referred to in subsection (1), a similar power conferred by this Part

may be used despite the existence of the power under the other

law.

3ZZAC Definitions

In this Part:

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adjoining premises, in relation to particular premises, means

premises adjoining, or providing access, to the premises.

adjoining premises occupier's notice: see section 3ZZDB.

applicable normal search warrant regime: see

subsection 3ZZBJ(2).

authorised agency means the Australian Federal Police.

chief officer, in relation to an authorised agency or eligible agency,

means the Commissioner.

conditions for issue: see section 3ZZBA.

damage, in relation to data, includes damage by erasure of data or

addition of other data.

day of execution of a delayed notification search warrant means

the day on which the warrant premises were first entered under the

warrant.

delayed notification search warrant: see subsection 3ZZAA(2).

eligible agency: see subsection 3ZZAA(3).

eligible issuing officer: see subsection 3ZZAD(1).

eligible offence: see subsection 3ZZAA(4).

eligible officer of an authorised agency or eligible agency means a

member or special member of the Australian Federal Police.

emergency situation, in relation to the execution of a delayed

notification search warrant in relation to premises, means a

situation that the executing officer or a person assisting believes,

on reasonable grounds, involves a serious and imminent threat to a

person's life, health or safety that requires the executing officer

and persons assisting to leave the premises.

evidential material means a thing relevant to an eligible offence, or

an indictable offence, that has been, is being, is about to be or is

likely to be committed.

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executing officer, in relation to a delayed notification search

warrant, means:

(a) the eligible officer of the authorised agency who is named in

the warrant by the eligible issuing officer as being

responsible for executing the warrant; or

(b) if that eligible officer does not intend to be present at the

execution of the warrant--another eligible officer of the

authorised agency whose name has been written in the

warrant by the eligible officer so named; or

has been written in the warrant by the eligible officer of the

authorised agency last named in the warrant.

inspecting officer means a person appointed under

subsection 3ZZGA(1).

nominated AAT member means a person in relation to whom a

nomination is in force under section 3ZZAF.

person assisting, in relation to a delayed notification search

warrant, means:

(a) a person who is an eligible officer of the authorised agency

and who is assisting in the execution of the warrant; or

(b) another person who has been authorised by the executing

officer to assist in executing the warrant.

premises includes a place and a conveyance.

relevant eligible agency, in relation to a thing seized under this

Part, is the eligible agency whose chief officer authorised the

application for the delayed notification search warrant under which

the thing was seized.

staff member of an authorised agency or eligible agency means a

person referred to in paragraph (a) of the definition of law

enforcement officer in subsection 3(1).

State or Territory agency: see section 3ZZGF.

State or Territory inspecting authority: see section 3ZZGF.

State or Territory law enforcement agency means:

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(a) the police force or police service of a State or Territory; or

(b) the New South Wales Crime Commission constituted by the

Crime Commission Act 2012 (NSW); or

by the Independent Commission Against Corruption Act 1988

(NSW); or

(d) the Police Integrity Commission constituted by the Police

Integrity Commission Act 1996 (NSW); or

(e) the Independent Broad-based Anti-corruption Commission

established by the Independent Broad-based Anti-corruption

Commission Act 2011 (Vic.); or

(f) the Crime and Corruption Commission established by the

Crime and Corruption Act 2001 (Qld); or

(g) the Corruption and Crime Commission established by the

Corruption and Crime Commission Act 2003 (WA); or

(h) the Independent Commissioner Against Corruption

established by the Independent Commissioner Against

Corruption Act 2012 (SA); or

(i) the Integrity Commission established by the Integrity

Commission Act 2009 (Tas.).

thing includes a thing in electronic form.

warrant premises means premises in relation to which a delayed

notification search warrant is in force, but does not include any

adjoining premises that are also authorised to be entered under the

warrant.

warrant premises occupier's notice: see section 3ZZDA.

3ZZAD Eligible issuing officers

(1) An eligible issuing officer is:

(a) a person:

(i) who is a Judge of the Federal Court of Australia, or a

Judge of the Supreme Court of a State or Territory; and

(ii) in relation to whom a consent under

subsection 3ZZAE(1), and a declaration under

subsection 3ZZAE(2), are in force; or

(b) a nominated AAT member.

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(2) A function or power conferred on a Judge by this Part is conferred

on the Judge in a personal capacity and not as a court or a member

of a court.

(3) A Judge has, in relation to the performance or exercise of a

function or power conferred on an eligible issuing officer by this

Part, the same protection and immunity as if he or she were

performing that function, or exercising that power, as, or as a

member of, a court (being the court of which the Judge is a

member).

Note:

A member of the Administrative Appeals Tribunal has the same

protection and immunity as a Justice of the High Court (see

subsection 60(1) of the Administrative Appeals Tribunal Act 1975).

3ZZAE Consent of Judges

(1) A Judge of the Federal Court of Australia, or of the Supreme Court

of a State or Territory, may, by writing, consent to be declared an

eligible issuing officer by the Minister under subsection (2).

(2) The Minister may, by writing, declare a Judge in relation to whom

a consent under subsection (1) is in force to be an eligible issuing

officer for the purposes of this Part.

(3) A consent or declaration under this section is not a legislative

instrument.

3ZZAF Nominated AAT members

(1) The Minister may, by writing, nominate a person who holds one of

the following appointments to the Administrative Appeals Tribunal

to issue delayed notification search warrants and perform related

functions under this Act:

(a) Deputy President;

(b) full-time senior member;

(d) member.

(2) Despite subsection (1), the Minister must not nominate a person

who holds an appointment as a part-time senior member or a

member of the Tribunal unless the person:

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(a) is enrolled as a legal practitioner of the High Court, of

another federal court or of the Supreme Court of a State or of

the Australian Capital Territory; and

(b) has been so enrolled for not less than 5 years.

(3) A nomination ceases to be in force if:

(a) the nominated AAT member ceases to hold an appointment

described in subsection (1); or

(b) the Minister, by writing, withdraws the nomination.

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Division 2--Issue of delayed notification search warrants

Subdivision A--The normal process for applying for and

issuing delayed notification search warrants

3ZZBA The conditions for issue of a delayed notification search

warrant

A person is satisfied that the conditions for issue of a delayed

notification search warrant are met in respect of particular premises

if the person:

(a) suspects, on reasonable grounds, that one or more eligible

offences have been, are being, are about to be or are likely to

be committed; and

(b) suspects, on reasonable grounds, that entry and search of the

premises will substantially assist in the prevention or

investigation of one or more of those offences; and

entry and search of the premises to be conducted without the

knowledge of the occupier of the premises or any other

person present at the premises.

3ZZBB Authorisation to apply for a delayed notification search

warrant

(1) The chief officer of an eligible agency may, in writing, authorise

an eligible officer of the agency to apply for a delayed notification

search warrant in respect of particular premises if the chief officer

is satisfied that the conditions for issue are met.

(2) The chief officer of an eligible agency may orally (in person or by

telephone or other means of voice communication) authorise an

eligible officer of the agency to apply for a delayed notification

search warrant in respect of particular premises if the chief officer

is satisfied that:

(a) the conditions for issue are met; and

(b) either:

(i) it is an urgent case; or

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(ii) the delay that would occur if the authorisation were in

writing would frustrate the effective execution of the

delayed notification search warrant.

(3) If the chief officer of an eligible agency gives an authorisation

under subsection (2), he or she must make a written record of the

authorisation within 7 days.

3ZZBC Applying for a delayed notification search warrant

(1) An eligible officer of an eligible agency may apply to an eligible

issuing officer for a delayed notification search warrant in respect

of particular premises if the officer is authorised under

section 3ZZBB to apply for the warrant.

Note 1:

The application will need to address:

(a) why the conditions for issue are met (see section 3ZZBA); and

(b) other matters the eligible issuing officer must have regard to (see

subsection 3ZZBD(2)); and

subsection 3ZZBE(1)).

Note 2:

In urgent cases or certain other cases, an application may be made by

telephone, fax or other electronic means: see section 3ZZBF.

(2) The eligible officer must provide the eligible issuing officer with:

(a) a copy of, or details of, the authorisation under

section 3ZZBB; and

(b) particulars of any applications, and the outcomes, so far as

known to the eligible officer, of any previous applications, in

respect of the premises, for a warrant under this Part or

Division 2 of Part IAA.

(3) The application must be supported by an affidavit setting out the

grounds on which the warrant is sought.

(4) The eligible issuing officer may request further information

relating to the application, and may require that the information be

provided on oath or affirmation.

3ZZBD Issuing a delayed notification search warrant

(1) If:

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(a) an eligible officer applies to an eligible issuing officer, in

accordance with section 3ZZBC, for a delayed notification

search warrant in respect of particular premises (the main

premises); and

(b) the eligible issuing officer is satisfied, by information on oath

or affirmation, that the conditions for issue are met;

the eligible issuing officer may issue a delayed notification search

warrant in respect of the premises.

(2) In determining whether the delayed notification search warrant

should be issued, the eligible issuing officer must have regard to

the following:

(a) the extent to which the exercise of the powers under the

warrant would assist the prevention or investigation of the

eligible offence to which the application for the warrant

relates;

(b) the existence of alternative means of obtaining the evidence

or information sought to be obtained;

affected;

(d) the nature and seriousness of that offence;

(e) if it is proposed that adjoining premises be entered for the

purpose of entering the main premises--whether allowing

entry to the adjoining premises is reasonably necessary:

(i) to enable entry to the main premises; and

(ii) to avoid compromising the prevention or investigation

of that offence;

(f) any conditions to which the warrant should be subject;

(g) the outcome, so far as known to the eligible issuing officer,

of any previous application, in respect of the main premises,

for a warrant under this Part or Division 2 of Part IAA.

(3) An eligible issuing officer of the Federal Court of Australia or the

Administrative Appeals Tribunal may issue a delayed notification

search warrant in relation to premises located anywhere in the

Commonwealth or an external Territory.

(4) An eligible issuing officer of the Supreme Court of a State or

Territory may issue a delayed notification search warrant only in

relation to premises located in that State or Territory.

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3ZZBE Contents of a delayed notification search warrant

(1) A delayed notification search warrant must specify the following:

(a) the name of the applicant;

(b) the name of the authorised agency;

or she inserts the name of another such eligible officer in the

warrant, is to be responsible for executing the warrant;

(d) the address, location or other description of the warrant

premises;

(e) the eligible offence to which the warrant relates;

(f) whether the warrant authorises the entry of adjoining

premises, and if it does, the address, location or other

description of the adjoining premises;

(g) the day on which, and the time at which, the warrant is

issued;

(h) the day on which, and the time at which, the warrant expires

(which must be a time on a day that is not more than 30 days

after the day on which the warrant is issued);

(i) the time by which notice of entry of premises under the

warrant is to be given (expressed as a time on a specified day

that is not more than 6 months after the day on which the

warrant is issued);

(j) a description of the kinds of things that may be searched for,

seized, copied, photographed, recorded, marked, tagged,

operated, printed, tested or sampled;

(k) whether the warrant authorises a thing to be placed in

substitution for a thing seized under the warrant or moved

under subsection 3ZZCE(2);

(l) whether the warrant authorises the re-entry of the warrant

premises, and any adjoining premises authorised to be

entered, to:

(i) return to the warrant premises any thing seized under

the warrant or moved under subsection 3ZZCE(2); or

(ii) retrieve any thing substituted at the warrant premises for

a thing seized under the warrant or moved under

subsection 3ZZCE(2);

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(m) if the warrant authorises such re-entry--that the re-entry

must be within:

(i) 14 days of the day of execution of the warrant; or

(ii) if a thing is moved under subsection 3ZZCE(2) and the

time for which it may be examined or processed is more

than 14 days because of an extension under

section 3ZZCE--that time as extended under that

section;

(n) any conditions to which the warrant is subject;

(o) that the eligible issuing officer is satisfied as mentioned in

paragraph 3ZZBD(1)(b), and has had regard to the matters

specified in subsection 3ZZBD(2).

Note 1:

Regarding paragraph (i):

(a) the specified time is the time by which a warrant premises

occupier's notice, and any adjoining premises occupier's notice,

must be given (subject to subsections 3ZZDA(4), 3ZZDB(4) and

3ZZDC(3)); and

(b) the specified time can be extended (see subsection 3ZZDC(5)).

Note 2:

Regarding the period described in paragraph (m), see also

subsection 3ZZCA(3).

(2) The warrant must be signed by the eligible issuing officer who

issued it and include his or her name.

Subdivision B--Delayed notification search warrants by

telephone, fax etc.

3ZZBF Delayed notification search warrants by telephone, fax etc.

When this section applies

(1) This section applies if the requirements specified in

subsection 3ZZBC(1) for when an eligible officer of an eligible

agency may apply for a delayed notification search warrant in

respect of particular premises are satisfied.

Note:

This section sets out an alternative method of applying for and issuing

delayed notification search warrants.

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Application for delayed notification search warrant

(2) The eligible officer may apply to an eligible issuing officer by

telephone, fax or other electronic means for a delayed notification

search warrant in respect of the premises:

(a) if it is an urgent case; or

(b) if the delay that would occur if the application were made in

person would frustrate the effective execution of the delayed

notification search warrant.

(3) The eligible issuing officer:

(a) may require communication by voice to the extent that it is

practicable in the circumstances; and

(b) may make a recording of the whole or any part of any such

communication by voice.

(4) The application must:

(a) include all information required to be provided in an ordinary

application for a delayed notification search warrant, but the

application may, if necessary, be made before the

information is sworn or affirmed; and

(b) include details of, or be accompanied by a copy of, the

authorisation under section 3ZZBB.

Eligible issuing officer may complete and sign warrant

(5) The eligible issuing officer may complete and sign the same

delayed notification search warrant that would have been issued

under section 3ZZBD if, after:

(a) considering the information and having received and

considered such further information (if any) as the eligible

issuing officer required; and

(b) having regard to the matters specified in

subsection 3ZZBD(2);

the eligible issuing officer is satisfied:

(d) that:

(i) a delayed notification search warrant in the terms of the

application should be issued urgently; or

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(ii) the delay that would occur if an application were made

in person would frustrate the effective execution of the

delayed notification search warrant.

(6) After completing and signing the delayed notification search

warrant, the eligible issuing officer must inform the applicant, by

telephone, fax or other electronic means, of:

(a) the terms of the warrant; and

(b) the day on which, and the time at which, the warrant was

signed.

Obligations on applicant

(7) The applicant must then do the following:

(a) complete a form of delayed notification search warrant in the

same terms as the warrant completed and signed by the

eligible issuing officer;

(b) state on the form the following:

(i) the name of the eligible issuing officer;

(ii) the day and time of signing of the warrant;

(i) the form of warrant completed by the applicant;

(ii) the information referred to in subsection (4), which

must have been duly sworn or affirmed.

(8) The applicant must comply with paragraph (7)(c) by the end of the

day after the earlier of the following:

(a) the day on which the delayed notification search warrant

expires;

(b) the day of execution of the warrant.

Eligible issuing officer to attach documents together

(9) The eligible issuing officer must attach the documents provided

under paragraph (7)(c) to the delayed notification search warrant

signed by the eligible issuing officer.

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3ZZBG Authority of delayed notification search warrant by

telephone, fax etc.

(1) A form of delayed notification search warrant duly completed

under subsection 3ZZBF(7) is authority for the same powers as are

authorised by the warrant signed by the eligible issuing officer

under subsection 3ZZBF(5).

(2) In any proceedings, a court is to assume (unless the contrary is

proved) that an exercise of power was not authorised by a delayed

notification search warrant under section 3ZZBF if:

(a) it is material, in those proceedings, for the court to be

satisfied that the exercise of power was duly authorised by

the warrant; and

(b) the delayed notification search warrant signed by the eligible

issuing officer authorising the exercise of the power is not

produced in evidence.

Subdivision C--Offences relating to applying for warrants etc.

3ZZBH Offence for making false statement in application for

delayed notification search warrant

A person must not make, in an application for a delayed

notification search warrant, a statement that the person knows to be

false or misleading in a material particular.

Penalty: Imprisonment for 2 years.

3ZZBI Offence relating to delayed notification search warrant by

telephone, fax etc.

A person must not:

(a) state in a document that purports to be a form of delayed

notification search warrant under section 3ZZBF the name of

an eligible issuing officer unless that eligible issuing officer

issued the warrant; or

(b) state on a form of delayed notification search warrant under

that section a matter that, to the person's knowledge, departs

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in a material particular from the form authorised by the

eligible issuing officer; or

purports to be a form of delayed notification search warrant

under that section that the person knows:

(i) has not been approved by an eligible issuing officer

under that section; or

(ii) departs in a material particular from the terms

authorised by an eligible issuing officer under that

section; or

(d) give to an eligible issuing officer a form of delayed

notification search warrant under that section that is not the

form of warrant that the person purported to execute.

Penalty: Imprisonment for 2 years.

Subdivision D--Interaction with other provisions under which

search warrants may be issued

3ZZBJ Issue of warrants under other provisions as well as or

instead of delayed notification search warrants

When this section applies

(1) This section applies if an eligible officer of an eligible agency,

under an authorisation under section 3ZZBB from the chief officer

of the agency, makes an application (the delayed notification

search warrant application) to an eligible issuing officer for a

delayed notification search warrant:

(a) in respect of particular premises; and

(b) in relation to a particular eligible offence.

(2) The applicable normal search warrant regime is Division 2 of

Part IAA.

Application may be made to eligible issuing officer for normal

search warrant

(3) The eligible officer may, at the same time or subsequently, make

an application to the eligible issuing officer for the issue of a

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warrant, under the applicable normal search warrant regime, to

search the premises or other premises for evidential material

relevant to the eligible offence or to another offence connected to

the eligible offence.

(4) If the eligible issuing officer is not a person who is authorised to

issue warrants under the applicable normal search warrant regime,

the eligible issuing officer may consider and deal with an

application made as mentioned in subsection (3) as if the eligible

issuing officer were such a person.

Eligible issuing officer may instead treat application as if it were

made under applicable normal search warrant regime

(5) If the eligible issuing officer is not satisfied that a delayed

notification search warrant in respect of the premises should be

issued, the eligible issuing officer may:

(a) treat the delayed notification search warrant application as if

it were an application for a warrant under the applicable

normal search warrant regime (even if such an application

has not been made); and

(b) consider and deal with the application under that regime:

(i) as if the application had been validly made under that

regime; and

(ii) if the eligible issuing officer is not a person who is

authorised to issue warrants under the applicable normal

search warrant regime--as if the eligible issuing officer

were such a person.

Division 3--Exercise of powers under delayed notification

search warrants

3ZZCA What is authorised by a delayed notification search warrant

(1) A delayed notification search warrant authorises the executing

officer or a person assisting to do any of the following:

(a) to enter the warrant premises;

(b) if the warrant authorises the entry of adjoining premises--to

enter the adjoining premises solely for the purpose of

entering or leaving the warrant premises;

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necessary for executing the warrant;

(d) to search the warrant premises for the kinds of things (if any)

specified in the warrant as the kinds of things that may be

searched for;

(e) to seize any thing of a kind specified in the warrant as a kind

of thing that may be seized;

(f) to seize other things found in the course of executing the

warrant at the warrant premises that the executing officer or a

person assisting believes on reasonable grounds to be

evidential material, if the executing officer or a person

assisting believes on reasonable grounds that the seizure of

the things is necessary to prevent their concealment, loss or

destruction or their use in committing any offence;

(g) to seize any thing found in the course of executing the

warrant at the warrant premises that the executing officer or a

person assisting believes on reasonable grounds:

(i) would present a danger to a person; or

(ii) could be used to assist a person to escape from lawful

custody;

(h) to search for and record fingerprints found at the premises

and to take samples of things found at the premises for

forensic purposes;

(i) if specified in the warrant--to place a thing in substitution

for a thing seized or moved under subsection 3ZZCE(2);

(j) to do any of the following acts to a thing found in the course

of executing the warrant at the warrant premises that is of a

kind specified in the warrant as the kind of thing to which the

act may be done, or that the executing officer or a person

assisting believes on reasonable grounds to be evidential

material:

(i) copy the thing;

(ii) photograph or otherwise record the thing;

(iii) mark or tag the thing (whether or not the mark or tag

can be detected only with the use of a device);

(iv) operate the thing;

(v) print the thing;

(vi) test the thing;

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(vii) sample the thing;

(k) to do anything reasonably necessary to conceal the fact that

any thing has been done under the warrant;

(l) if specified in the warrant--to re-enter:

(i) the warrant premises; and

(ii) if the warrant authorises the entry of adjoining

premises--the adjoining premises solely for the purpose

of entering or leaving the warrant premises;

within the period described in paragraph 3ZZBE(1)(m), for

the purpose of returning any thing seized from the warrant

premises or moved under subsection 3ZZCE(2), or retrieving

any thing substituted at the premises for a thing seized or

moved under that subsection;

(m) to exercise the other powers conferred on the executing

officer, or a person assisting, by the other provisions of this

Division.

Note:

Paragraph (c) does not authorise the acquisition or use of an assumed

identity (see Part IAC). The protection provided by Part IAC only

applies if the requirements of that Part have been complied with.

(2) The entry of premises under a paragraph of subsection (1) may be

effected without the knowledge of the occupier of the premises or

any other person present at the premises.

(3) If the period referred to in paragraph (1)(l) ends after the delayed

notification search warrant expires, the powers referred to in that

paragraph may be exercised during that period as if the warrant

were still in force.

3ZZCB Specific powers available to person executing warrant

Photography

(1) In executing a delayed notification search warrant, the executing

officer or a person assisting may, for a purpose incidental to the

execution of the warrant, take photographs (including video

recordings) of the warrant premises or of things at the warrant

premises.

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Completion of execution of warrant after brief interruption

(2) If a delayed notification search warrant in relation to premises is

being executed, the executing officer and the persons assisting

may, if the warrant is still in force, complete the execution of the

warrant after all of them temporarily cease its execution and leave

the premises:

(a) for not more than one hour; or

(b) for not more than 24 hours, or such longer period as allowed

by an eligible issuing officer under section 3ZZCC, if they

leave the premises:

(i) because of an emergency situation; or

(ii) to reduce the risk of discovery of the fact that a law

enforcement officer has been on the premises.

Completion of execution of warrant after court proceedings

(3) If:

(a) the execution of a delayed notification search warrant is

stopped by an order of a court; and

(b) the order is later revoked or reversed on appeal; and

the execution of the warrant may be completed.

3ZZCC Extension of time to re-enter premises left in emergency

situation or to avoid discovery of law enforcement officer

(1) If:

(a) a delayed notification search warrant in relation to premises

is being executed; and

(b) the executing officer and the persons assisting (if any) leave

the premises for a reason described in

subparagraph 3ZZCB(2)(b)(i) or (ii); and

reasonable grounds that the executing officer and the persons

assisting will not be able to return to the premises within the

24-hour period mentioned in paragraph 3ZZCB(2)(b);

he or she may apply to an eligible issuing officer for an extension

of that period.

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(2) If an application mentioned in subsection (1) has been made, an

eligible issuing officer may extend the period during which the

executing officer and persons assisting may be away from the

premises if:

(a) the eligible issuing officer is satisfied, by information on oath

or affirmation, that there are circumstances that justify the

extension; and

(b) the extension would not result in the period ending after the

expiry of the warrant.

3ZZCD Executing a warrant--assistance, use of force and related

matters

(1) In executing a delayed notification search warrant:

(a) the executing officer may obtain such assistance; and

(b) the executing officer, or an eligible officer who is a person

assisting, may use such force against persons and things; and

force against things;

as is necessary and reasonable in the circumstances.

(2) At any time when the executing officer is at warrant premises, or

adjoining premises, under a delayed notification search warrant,

the executing officer must have in his or her possession, or be in a

position to produce without delay:

(a) a copy of the warrant; or

(b) if the warrant was issued under section 3ZZBF--a copy of

the form of warrant completed under subsection 3ZZBF(7).

(3) To avoid doubt, subsection (2) does not require the executing

officer to produce a copy of the warrant or the form of warrant.

3ZZCE Use of equipment to examine or process things

Equipment may be brought onto warrant premises

(1) In executing a delayed notification search warrant, the executing

officer or a person assisting may bring to the warrant premises any

equipment reasonably necessary for the examination or processing

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of a thing found at the premises in order to determine whether it is

a thing that may be seized under the warrant.

Thing may be moved for examination or processing

(2) A thing found at the warrant premises may be moved to another

place for examination or processing in order to determine whether

it may be seized under the delayed notification search warrant if:

(a) it is significantly more practicable to do so having regard to

the timeliness and cost of examining or processing the thing

at another place and the availability of expert assistance; and

(b) the executing officer or a person assisting suspects on

reasonable grounds that the thing contains or constitutes a

thing that may be seized under the warrant.

Note:

Sections 3ZZCG and 3ZZCH authorise operation of electronic

equipment moved under this section.

Time limit on moving a thing

(3) The thing may be moved to another place for examination or

processing for no longer than 14 days.

(4) An executing officer may apply to an eligible issuing officer for

one or more extensions of that time if the executing officer

believes on reasonable grounds that the thing cannot be examined

or processed within 14 days or that time as previously extended.

(5) A single extension cannot exceed 7 days.

Equipment at warrant premises may be operated

(6) The executing officer or a person assisting may operate equipment

already at the warrant premises to carry out the examination or

processing of a thing found at the premises, if the executing officer

or person believes on reasonable grounds that:

(a) the equipment is suitable for the examination or processing;

and

(b) the examination or processing can be carried out without

damage to the equipment or the thing.

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3ZZCF Use of electronic equipment at warrant premises

Use of electronic equipment to access data

(1) In executing a delayed notification search warrant, the executing

officer or a person assisting may operate electronic equipment at

the warrant premises to access data (including data not held at the

premises) if he or she suspects on reasonable grounds that the data

constitutes a thing that may be seized under the warrant.

Copy of data onto disk, tape or other device

(2) If the executing officer or person assisting suspects on reasonable

grounds that any data accessed by operating the electronic

equipment constitutes a thing that may be seized under the warrant,

he or she may copy the data to a disk, tape or other associated

device and take the disk tape or device from the warrant premises.

(3) If:

(a) under subsection (2), the executing officer or person assisting

copies data to a disk, tape or device; and

(b) the chief officer of the authorised agency is satisfied that the

data is not required, is no longer required, or is not likely to

be required, for a purpose mentioned in section 3ZZEA;

the chief officer must arrange for:

authorised agency; and

(d) the destruction of any other reproduction of the data in the

control of the authorised agency.

Powers if thing that may be seized is accessible by operating

equipment

(4) If the executing officer or a person assisting, after operating the

electronic equipment, finds that a thing that may be seized under

the warrant is accessible by doing so, he or she may:

(a) seize the equipment and any disk, tape or other associated

device; or

(b) if the thing can, by using facilities at the warrant premises, be

put in documentary form--operate the facilities to put the

thing in that form and seize the documents so produced.

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(5) The executing officer or a person assisting may seize equipment

under paragraph (4)(a) only if:

(a) it is not practicable to copy the data as mentioned in

subsection (2) or to put the thing that may be seized in

documentary form as mentioned in paragraph (4)(b); or

(b) possession of the equipment, by the occupier of the warrant

premises, could constitute an offence.

3ZZCG Use of moved electronic equipment at other place

(1) If electronic equipment is moved to another place under

subsection 3ZZCE(2), the executing officer or a person assisting

may operate the equipment to access data (including data held at

another place).

(2) If the executing officer or person assisting suspects on reasonable

grounds that any data accessed by operating the electronic

equipment constitutes a thing that may be seized under the warrant,

he or she may copy any or all of the data accessed by operating the

electronic equipment to a disk, tape or other associated device.

(3) If the chief officer of the authorised agency is satisfied that the data

is not required, is no longer required, or is not likely to be required,

for a purpose mentioned in section 3ZZEA, the chief officer must

arrange for:

(a) the removal of the data from any device in the control of the

authorised agency; and

(b) the destruction of any other reproduction of the data in the

control of the authorised agency.

(4) If the executing officer or a person assisting, after operating the

equipment, finds that a thing that may be seized under the warrant

is accessible by doing so, he or she may:

(a) seize the equipment and any disk, tape or other associated

device; or

(b) if the thing can be put in documentary form--put the thing in

that form and seize the documents so produced.

(5) The executing officer or a person assisting may seize equipment

under paragraph (4)(a) only if:

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(a) it is not practicable to copy the data as mentioned in

subsection (2) or to put the thing that may be seized in

documentary form as mentioned in paragraph (4)(b); or

(b) possession of the equipment, by the occupier of the warrant

premises, could constitute an offence.

3ZZCH Operating seized or moved electronic equipment

(1) This section applies to electronic equipment seized under this Part

or moved under section 3ZZCE.

(2) The electronic equipment may be operated at any location after it

has been seized or moved, for the purpose of determining whether

data that is a thing that may be seized under the relevant delayed

notification search warrant is held on or accessible from the

electronic equipment, and obtaining access to such data.

(3) The data referred to in subsection (2) includes, but is not limited to,

the following:

(a) data held on the electronic equipment, including data held on

the electronic equipment when operated under this section

that was not held on the electronic equipment at the time the

electronic equipment was seized;

(b) data not held on the electronic equipment but accessible by

using it, including data that was not accessible at the time the

electronic equipment was seized.

(4) The electronic equipment may be operated before or after the

expiry of the relevant delayed notification search warrant.

(5) This section does not limit the operation of other provisions of this

Part that relate to dealing with items seized under this Part or

moved under section 3ZZCE.

Note:

For example, this section does not affect the operation of the time

limits in section 3ZZCE on examination or processing of a thing

moved under that section.

3ZZCI Compensation for damage to electronic equipment

(1) This section applies if:

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(a) as a result of equipment being operated as mentioned in

section 3ZZCE, 3ZZCF, 3ZZCG or 3ZZCH:

(i) damage is caused to the equipment; or

(ii) damage is caused to data recorded on the equipment or

data access to which was obtained from the operation of

the equipment; or

(iii) programs associated with the use of the equipment, or

with the use of the data, are damaged or corrupted; and

(b) the damage or corruption occurs because:

(i) insufficient care was exercised in selecting the person

who was to operate the equipment; or

(ii) insufficient care was exercised by the person operating

the equipment.

(2) The Commonwealth must pay the owner of the equipment, or the

user of the data or programs, such reasonable compensation for the

damage or corruption as the Commonwealth and the owner or user

agree on.

(3) However, if the owner or user and the Commonwealth fail to

agree, the owner or user may institute proceedings in the Federal

Court of Australia for such reasonable amount of compensation as

the court determines.

Division 4--Notice to occupiers

3ZZDA Warrant premises occupier's notice must be prepared and

given

(1) As soon as practicable after the exercise of powers under a delayed

notification search warrant has been completed, the executing

officer must prepare a written notice (the warrant premises

occupier's notice) that complies with subsection (2).

(2) The warrant premises occupier's notice must:

(a) specify the name of the authorised agency; and

(b) specify the day on which, and the time at which, the warrant

was issued; and

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(d) specify the address, location or other description of the

warrant premises; and

(e) specify the number of persons who entered the warrant

premises for the purposes of executing, or assisting in the

execution of, the warrant; and

(f) include a summary of:

(i) the purpose of delayed notification search warrants

(including a statement to the effect that they are to

authorise entry and search of premises to be conducted

without the knowledge of the occupier of the premises

or any other person present at the premises); and

(ii) the things done under the warrant; and

(g) describe any thing seized from the warrant premises and state

whether a thing was placed in substitution for the seized

thing; and

(h) state whether any thing was returned to, or retrieved from,

the warrant premises and the date on which this occurred.

(3) Subject to subsection (4), a staff member of the authorised agency

must give the warrant premises occupier's notice, and a copy of the

warrant (or the form of warrant completed under

subsection 3ZZBF(7)), to the person (the occupier) who was the

occupier of the warrant premises when they were entered under the

warrant. The notice, and the copy of the warrant (or form of

warrant), must be given to the occupier by the time applicable

under section 3ZZDC.

(4) If the occupier cannot be identified or located, a staff member of

the authorised agency must report back to an eligible issuing

officer, and the eligible issuing officer may give such directions as

the eligible issuing officer thinks fit.

(5) A notice and a direction under this section are not legislative

instruments.

3ZZDB Adjoining premises occupier's notice must be prepared and

given

(1) As soon as practicable after adjoining premises are entered under a

delayed notification search warrant, the executing officer must

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prepare a written notice (the adjoining premises occupier's notice)

that complies with subsection (2).

(2) The adjoining premises occupier's notice must specify:

(a) the name of the authorised agency; and

(b) the day on which, and the time at which, the warrant was

issued; and

(d) the address, location or other description of:

(i) the warrant premises; and

(ii) the adjoining premises; and

(e) the purpose of delayed notification search warrants,

including:

(i) a statement to the effect that they are to authorise entry

and search of warrant premises to be conducted without

the knowledge of the occupier of those premises or any

other person present at those premises; and

(ii) a statement that adjoining premises may be entered

solely for the purpose of entering or leaving the warrant

premises.

(3) Subject to subsection (4), a staff member of the authorised agency

must give the adjoining premises occupier's notice, and a copy of

the warrant (or the form of warrant completed under

subsection 3ZZBF(7)), to the person (the occupier) who was the

occupier of the adjoining premises when they were entered under

the warrant. The notice, and the copy of the warrant, must be given

to the occupier by the time applicable under section 3ZZDC.

(4) If the occupier cannot be identified or located, a staff member of

the authorised agency must report back to an eligible issuing

officer, and the eligible issuing officer may give such directions as

the eligible issuing officer thinks fit.

(5) A notice and a direction under this section are not legislative

instruments.

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3ZZDC Time for giving warrant premises occupier's notice or

adjoining premises occupier's notice

Section determines time by which notice must be given

(1) This section:

(a) applies if a warrant premises occupier's notice, or an

adjoining premises occupier's notice, is prepared in relation

to a delayed notification search warrant; and

(b) determines the time by which the notice (and a copy of the

warrant, or the form of warrant) must be given in accordance

with subsection 3ZZDA(3) or 3ZZDB(3).

Note:

This section has effect subject to any directions given under

subsection 3ZZDA(4) or 3ZZDB(4).

General rule

(2) Subject to subsection (3), the notice (and the copy of the warrant or

form of warrant) must be given by:

(a) the time specified under paragraph 3ZZBE(1)(i); or

(b) if that time has been extended under subsection (5), that time

as so extended.

Rule if person is charged with an offence relying on evidence

obtained under the warrant

(3) If:

(a) a person is charged with an offence; and

(b) the prosecution proposes to rely on evidence obtained under

the warrant;

the notice (and the copy of the warrant or of the form of the

warrant completed under subsection 3ZZBF(7)) must be given as

soon as practicable after the person is charged with the offence, but

no later than the earlier of the following times:

(d) the time of service of the brief of evidence by the

prosecution.

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Extending the time specified in the warrant for giving notice

(4) The chief officer of the authorised agency may, in writing,

authorise an eligible officer of the agency to apply to an eligible

issuing officer for an extension of the time specified under

paragraph 3ZZBE(1)(i) by which notice of entry of premises under

a delayed notification search warrant is to be given.

(5) An eligible issuing officer may, on application by an eligible

officer authorised under subsection (4), extend the time specified

under paragraph 3ZZBE(1)(i) by which notice of entry of premises

under a delayed notification search warrant is to be given if the

eligible issuing officer is satisfied that there are reasonable grounds

for continuing to delay notice of entry of the premises.

(6) An eligible issuing officer may, under subsection (5), extend the

time specified under paragraph 3ZZBE(1)(i) on more than one

occasion, but:

(a) must not extend the time by more than 6 months on any one

occasion; and

(b) must not extend the time to more than 18 months after the

day on which the delayed notification search warrant was

issued unless:

(i) the Minister is satisfied on reasonable grounds that there

are exceptional circumstances justifying the extension,

and that it is in the public interest to do so; and

(ii) the Minister has issued a certificate approving the

application for the extension; and

(iii) the eligible issuing officer is satisfied that there are

exceptional circumstances justifying such an extension.

(7) A certificate issued under subsection (6) is not a legislative

instrument.

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Division 5--Using, sharing and returning things seized

Subdivision A--Using and sharing things seized

3ZZEA Purposes for which things may be used and shared

Use and sharing of thing by eligible officer or Commonwealth

officer

(1) An eligible officer of an eligible agency or a Commonwealth

officer may use, or make available to another eligible officer or

Commonwealth officer to use, a thing seized under this Part for the

purpose of any or all of the following if it is necessary to do so for

that purpose:

(a) preventing, investigating or prosecuting an offence;

(b) proceedings under the Proceeds of Crime Act 1987 or the

Proceeds of Crime Act 2002;

Commonwealth;

(d) the performance of a function or duty, or the exercise of a

power, by a person, court or other body under, or in relation

to a matter arising under, Division 104 or 105 of the Criminal

Code;

(e) investigating or resolving a complaint or an allegation of

misconduct relating to an exercise of a power or the

performance of a function or duty under this Part;

(f) investigating or resolving an AFP conduct or practices issue

(within the meaning of the Australian Federal Police Act

1979) under Part V of that Act;

(g) investigating or resolving a complaint under the Ombudsman

Act 1976 or the Privacy Act 1988;

(h) investigating or inquiring into a corruption issue under the

Law Enforcement Integrity Commissioner Act 2006;

(i) proceedings in relation to a complaint, allegation or issue

mentioned in paragraph (e), (f), (g) or (h);

(j) deciding whether to institute proceedings, to make an

application or request, or to take any other action, mentioned

in any of the preceding paragraphs of this subsection;

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(k) the performance of the functions of the Australian Federal

Police under section 8 of the Australian Federal Police Act

1979.

(2) An eligible officer of an eligible agency or a Commonwealth

officer may use a thing seized under this Part for any other use that

is required or authorised by or under a law of a State or a Territory.

(3) An eligible officer of an eligible agency may make available to

another eligible officer of an eligible agency or a Commonwealth

officer to use a thing seized under this Part for any purpose for

which the making available of the thing or document is required or

authorised by a law of a State or Territory.

(4) To avoid doubt, this section does not limit any other law of the

Commonwealth that:

(a) requires or authorises the use of a thing; or

(b) requires or authorises the making available (however

described) of a thing.

Sharing thing for use by State, Territory or foreign agency

(5) An eligible officer of an eligible agency or a Commonwealth

officer may make a thing seized under this Part available to:

(a) a State or Territory law enforcement agency; or

(b) an agency that has responsibility for:

(i) law enforcement in a foreign country; or

(ii) intelligence gathering for a foreign country; or

(iii) the security of a foreign country;

to be used by that agency for a purpose mentioned in

subsection (1), (2) or (3) and the purpose of any or all of the

following (but not for any other purpose):

law of a State or Territory;

(d) proceedings under a corresponding law (within the meaning

of the Proceeds of Crime Act 1987 or the Proceeds of Crime

Act 2002);

(e) proceedings for the forfeiture of the thing under a law of a

State or Territory;

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(f) deciding whether to institute proceedings or to take any other

action mentioned in any of paragraphs (1)(a) to (k)

(inclusive), subsection (2) or (3) or paragraph (c), (d) or (e)

of this subsection.

Ministerial arrangements for sharing

(6) This Division does not prevent the Minister from making an

arrangement with a Minister of a State or Territory for:

(a) the making available to a State or Territory law enforcement

agency of that State or Territory, for purposes mentioned in

subsections (1), (3) and (5), of things seized under this Part;

and

(b) the disposal by the agency of such things when they are no

longer of use to that agency for those purposes.

Note:

This subsection does not empower the Minister to make such an

arrangement.

Subdivision B--Returning things seized

3ZZEB When things seized must be returned

(1) If the chief officer of the relevant eligible agency is satisfied that a

thing seized under this Part is not required (or is no longer

required) for a purpose mentioned in section 3ZZEA or for other

judicial or administrative review proceedings, the chief officer

must take reasonable steps to return the thing to the person from

whom it was seized, or to the owner if that person is not entitled to

possess it.

(2) However, the chief officer does not have to take those steps if:

(a) either:

(i) the thing may be retained because of an order under

subsection 3ZZEC(1), or any other order under that

subsection has been made in relation to the thing; or

(ii) the chief officer has applied for such an order and the

application has not been determined; or

(b) the thing may otherwise be retained, destroyed or disposed of

under a law, or an order of a court or tribunal, of the

Commonwealth or of a State or a Territory; or

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is the subject of a dispute as to ownership; or

(d) a warrant premises occupier's notice has not been given in

relation to the occupier of the warrant premises.

3ZZEC Eligible issuing officer may permit a thing seized to be

retained, forfeited etc.

(1) An eligible issuing officer may, on application by an eligible

officer of an eligible agency, make any of the orders referred to in

subsection (2) in relation to a thing seized under this Part if the

eligible issuing officer is satisfied that there are reasonable grounds

to suspect that, if the thing is returned to the owner of the thing, or

the person from whom the thing was seized, it is likely to be used

by that person or another person in the commission of:

(a) a terrorist act or a terrorism offence; or

(b) a serious offence (within the meaning of Part IAA).

(2) The orders are as follows:

(a) an order that the thing may be retained for the period

specified in the order;

(b) an order that the thing is forfeited to the Commonwealth;

(i) the thing be sold and the proceeds given to the owner of

the thing; or

(ii) the thing be sold in some other way;

(d) an order that the thing is to be destroyed or otherwise

disposed of.

(3) If the eligible issuing officer is not satisfied as mentioned in

subsection (1), the eligible issuing officer must order that the thing

be returned to:

(a) the person from whom the thing was seized; or

(b) if that person is not entitled to possess the thing--the owner

of the thing.

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Division 6--Reporting and record-keeping

3ZZFA Reporting on delayed notification search warrants

(1) The executing officer in relation to a delayed notification search

warrant, or the applicant for the warrant, must give a written report

on the warrant to the chief officer of the authorised agency.

(2) The report must be given to the chief officer of the authorised

agency as soon as practicable after:

(a) the day of execution of the warrant; or

(b) if the warrant was not executed--the expiry of the warrant.

(3) The report must:

(a) specify the address, location or other description of the

warrant premises; and

(b) state whether or not the warrant was executed; and

person or in accordance with section 3ZZBF.

(4) If the warrant was executed, the report must also include the

following information:

(a) the day of execution of the warrant;

(b) the name of the executing officer;

provided;

(d) the name of the occupier of the warrant premises, if known to

the executing officer;

(e) whether adjoining premises were entered under the warrant

and, if they were, the name of the occupier of the adjoining

premises, if known to the executing officer;

(f) the things that were done under the warrant;

(g) without limiting paragraph (f)--details of any thing at the

warrant premises:

(i) seized; or

(ii) replaced with a substitute; or

(iii) copied, photographed or otherwise recorded; or

(iv) marked or tagged; or

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(v) operated, printed, tested or sampled;

(h) whether or not the execution of the warrant assisted in the

prevention or investigation of an eligible offence;

(i) details of compliance with any conditions to which the

warrant was subject;

(j) details of any warrant premises occupier's notice given in

relation to the warrant;

(k) details of any adjoining premises occupier's notice given in

relation to the warrant;

(l) details of any directions given under subsection 3ZZDA(4) or

3ZZDB(4) in relation to the warrant.

(5) To avoid doubt, if, at the time a report was given, the details in any

of paragraphs (4)(j), (k) and (l) were not included because notice or

directions had not been given at that time, but are given later, the

person who gave the original report under subsection (1) must give

a further report under that subsection including those details.

(6) If the warrant was not executed, the report must state the reason

why it was not executed.

(7) If the warrant premises were entered after the warrant was

executed for the purpose of returning a thing to, or retrieving a

thing left at, the premises, a written report in relation to that entry

must be provided to the chief officer of the authorised agency. The

report must include the following information:

(a) the address, location or other description of the warrant

premises;

(b) the date on which the warrant premises were entered for that

purpose;

premises;

(d) details of the thing returned or retrieved;

(e) if the thing was not returned or retrieved--the reason why the

thing was not returned or removed.

(8) A report under subsection (7) must be given as soon as practicable

after the warrant premises were entered as mentioned in that

subsection.

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(9) A report under this section is not a legislative instrument.

3ZZFB Annual reports to Minister

(1) The chief officer of an eligible agency must give a written report to

the Minister that includes the following information in respect of

each financial year:

(a) the number of applications for delayed notification search

warrants made in person by eligible officers of the agency;

(b) the number of applications for delayed notification search

warrants made under section 3ZZBF by eligible officers of

the agency;

a result of applications referred to in paragraphs (a) and (b)

and the eligible offences to which they related;

(d) the number of delayed notification search warrants that were

executed by an eligible officer of the agency;

(e) the number of delayed notification search warrants that were

executed by an eligible officer of the agency under which:

(i) one or more things were seized from the warrant

premises; or

(ii) one or more things were placed in substitution at the

warrant premises for a seized thing; or

(iii) one or more things were returned to, or retrieved from,

the warrant premises; or

(iv) one or more things were copied, photographed,

recorded, marked, tagged, operated, printed, tested or

sampled at the warrant premises;

(f) any other information relating to delayed notification search

warrants and the administration of this Part that the Minister

considers appropriate.

(2) The report for a financial year must be given to the Minister as

soon as practicable, and in any event not more than 3 months, after

the end of the financial year.

(3) The Minister must cause a copy of the report to be laid before each

House of the Parliament within 15 sitting days of that House after

the Minister receives it.

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3ZZFC Regular reports to Ombudsman

As soon as practicable after each 6-month period starting on

1 January or 1 July the chief officer of an eligible agency must give

a written report to the Ombudsman that includes the following

information in respect of the period:

(a) the number of applications for delayed notification search

warrants made in person by eligible officers of the agency;

(b) the number of applications for delayed notification search

warrants made under section 3ZZBF by eligible officers of

the agency;

a result of applications referred to in paragraphs (a) and (b)

and the eligible offences to which they related;

(d) the number of delayed notification search warrants that were

executed by an eligible officer of the agency.

3ZZFD Keeping documents connected with delayed notification

search warrants

The chief officer of an eligible agency must cause the following to

be kept:

(a) a copy of each authorisation given in writing by the chief

officer under section 3ZZBB;

(b) a copy of the written record made under section 3ZZBB of

each authorisation given orally by the chief officer under that

section;

warrant made by an eligible officer of the agency, and a

statement of whether the application was granted or refused;

(d) each delayed notification search warrant issued to an eligible

officer of the agency;

(e) a copy of each form of delayed notification search warrant

completed under subsection 3ZZBF(7) by an eligible officer

of the agency;

(f) a copy of the following:

(i) each warrant premises occupier's notice given in

relation to a delayed notification search warrant issued

to an eligible officer of the agency;

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(ii) each adjoining premises occupier's notice given in

relation to such a warrant;

(iii) each application made by an eligible officer of the

agency under section 3ZZCC;

(iv) any directions given under subsection 3ZZDA(4) or

3ZZDB(4) in relation to such a warrant;

(v) each authorisation given by the chief officer of the

agency under subsection 3ZZDC(4);

(vi) each application made by an eligible officer of the

agency as mentioned in subsection 3ZZDC(5);

(vii) each extension of time granted under

subsection 3ZZDC(5) in response to such an

application;

(g) each report given to the chief officer of the agency under

section 3ZZFA.

3ZZFE Register of delayed notification search warrants

(1) The chief officer of an eligible agency must cause a register of

delayed notification search warrants to be kept.

(2) The register is to specify, for each delayed notification search

warrant sought by an eligible officer of the eligible agency:

(a) the date the warrant was issued or refused; and

(b) the name of the eligible issuing officer who issued or refused

to issue the warrant; and

(i) the name of the applicant for the warrant and the

executing officer; and

(ii) the eligible offence to which the warrant relates; and

(iii) if the warrant was executed--the day of execution of the

warrant; and

(iv) the day and time of issue of the warrant, and the time of

expiry of the warrant; and

(v) the time by which notice of entry of premises under the

warrant is to be given; and

(vi) whether a warrant premises occupier's notice has been

given in relation to the warrant and, if such a notice has

been given, the date on which it was given; and

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(vii) whether an adjoining premises occupier's notice has

been given in relation to the warrant and, if such a

notice has been given, the date on which it was given;

and

(viii) details of any extension of time granted under

subsection 3ZZDC(5) in relation to the warrant; and

(ix) details of any directions given under

subsection 3ZZDA(4) or 3ZZDB(4) in relation to the

warrant.

(3) The register is not a legislative instrument.

Division 7--Inspections by Ombudsman

3ZZGA Appointment of inspecting officers

(1) The Ombudsman may appoint members of the Ombudsman's staff

to be inspecting officers for the purposes of this Division.

(2) An appointment under subsection (1) must be in writing.

3ZZGB Inspection of records by the Ombudsman

(1) The Ombudsman must, from time to time and at least once in each

6-month period starting on 1 January or 1 July, inspect the records

of each eligible agency to determine the extent of compliance with

this Part by the agency, and eligible officers of the agency, in

relation to delayed notification search warrants.

(2) For the purpose of an inspection under this section, the

Ombudsman:

(a) may, after notifying the chief officer of the eligible agency,

enter at any reasonable time premises occupied by the

agency; and

(b) is entitled to have full and free access at all reasonable times

to all records of the agency that are relevant to the inspection;

and

Ombudsman any information that the Ombudsman considers

necessary, being information that is in the member's

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possession, or to which the member has access, and that is

relevant to the inspection.

(3) The chief officer must ensure that staff members of the agency

give the Ombudsman any assistance the Ombudsman reasonably

requires to enable the Ombudsman to perform functions under this

section.

(4) Nothing in this section requires the Ombudsman to inspect records

that are relevant to the obtaining or execution of a delayed

notification search warrant if a warrant premises occupier's notice

has not yet been given in relation to the warrant, unless directions

have been made under subsection 3ZZDA(4) or 3ZZDB(4) not

requiring such notice to be given.

3ZZGC Power to obtain relevant information

(1) If the Ombudsman has reasonable grounds to believe that a staff

member of an eligible agency is able to give information relevant

to an inspection under this Division of the agency's records,

subsections (2) and (3) have effect.

(2) The Ombudsman may, by writing given to the staff member,

require the staff member to give the information to the

Ombudsman:

(a) by writing signed by the staff member; and

(b) at a specified place and within a specified period.

(3) The Ombudsman may, by writing given to the staff member,

require the staff member to attend:

(a) before a specified inspecting officer; and

(b) at a specified place; and

day;

to answer questions relevant to the inspection.

(4) If the Ombudsman:

(a) has reasonable grounds to believe that a staff member of an

eligible agency is able to give information relevant to an

inspection under this Division of the agency's records; and

(b) does not know the staff member's identity;

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the Ombudsman may, by writing given to the chief officer of the

agency, require the chief officer, or a person nominated by the

chief officer, to attend:

(d) at a specified place; and

(e) within a specified period or at a specified time on a specified

day;

to answer questions relevant to the inspection.

(5) The place, and the period or the time and day, specified in a

requirement under this section, must be reasonable having regard

to the circumstances in which the requirement is made.

3ZZGD Offence

A person commits an offence if:

(a) the person is required under section 3ZZGC to attend before

another person, to give information or to answer questions;

and

(b) the person refuses or fails to do so.

Penalty: Imprisonment for 6 months.

3ZZGE Ombudsman to be given information etc. despite other laws

(1) Despite any other law, a person is not excused from giving

information, answering a question, or giving access to a document,

as and when required under this Division, on the ground that giving

the information, answering the question, or giving access to the

document, as the case may be:

(a) would contravene a law; or

(b) would be contrary to the public interest; or

liable to a penalty; or

(d) would disclose one of the following:

(i) a legal advice given to a Minister or a Department, or a

prescribed authority (within the meaning of the

Ombudsman Act 1976);

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(ii) a communication between an officer of a Department or

of a prescribed authority (within the meaning of the

Ombudsman Act 1976) and another person or body,

being a communication protected against disclosure by

legal professional privilege.

(2) However, if the person is a natural person:

(a) the information, the answer, or the fact that the person has

given access to the document, as the case may be; and

(b) any information or thing (including a document) obtained as

a direct or indirect consequence of giving the information,

answering the question or giving access to the document;

are not admissible in evidence against the person except in a

proceeding by way of a prosecution for an offence against

section 3ZZHA or against Part 7.4 or 7.7 of the Criminal Code.

(3) Nothing in section 3ZZHA or any other law prevents a staff

member of an eligible agency from:

(a) giving information to the Ombudsman or an inspecting

officer (whether orally or in writing and whether or not in

answer to a question); or

(b) giving access to a record of the agency to the Ombudsman or

an inspecting officer;

for the purposes of an inspection under this Division of the

agency's records.

(4) Nothing in section 3ZZHA or any other law prevents a staff

member of an eligible agency from making a record of

information, or causing a record of information to be made, for the

purposes of giving the information to a person as permitted by

subsection (3).

(5) The fact that a person is not excused under subsection (1) from

giving information, answering a question or producing a document

does not otherwise affect a claim of legal professional privilege

that anyone may make in relation to that information, answer or

document.

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3ZZGF Exchange of information between Ombudsman and State or

Territory inspecting authorities

(1) The Ombudsman may give information that:

(a) relates to a State or Territory agency; and

(b) was obtained by the Ombudsman under this Division;

to the State or Territory inspecting authority in relation to the

agency.

(2) The Ombudsman may only give information to an authority under

subsection (1) if the Ombudsman is satisfied that the giving of the

information is necessary to enable the authority to perform its

functions in relation to the State or Territory agency.

(3) The Ombudsman may receive from a State or Territory inspecting

authority information relevant to the performance of the

Ombudsman's functions under this Division.

(4) In this section:

State or Territory agency means the police force or police service

of a State or Territory.

State or Territory inspecting authority, in relation to a State or

Territory agency, means the authority that, under the law of the

State or Territory concerned, has the function of making

inspections of a similar kind to those provided for in

section 3ZZGB.

3ZZGG Ombudsman not to be sued

(1) The Ombudsman, an inspecting officer, or a person acting under an

inspecting officer's direction or authority, is not liable to an action,

suit or proceeding for or in relation to an act done, or omitted to be

done, in good faith in the performance or exercise, or the purported

performance or exercise, of a function or power conferred by this

Division.

(2) A reference in this section to the Ombudsman includes a reference

to a Deputy Ombudsman or a delegate of the Ombudsman.

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3ZZGH Report on inspection

(1) As soon as practicable after each 6-month period starting on

1 January or 1 July the Ombudsman must give a written report to

the Minister on the results of each inspection under section 3ZZGB

in the period.

(2) If, having regard to information obtained in the course of the

inspection or a previous inspection, the Ombudsman considers that

the requirements of section 3ZZFB or 3ZZFC have not been

properly complied with in relation to an eligible agency, the

Ombudsman may include a comment to that effect in the report.

(3) The Minister must cause a copy of the report to be laid before each

House of the Parliament within 15 sitting days of that House after

the Minister receives it.

Division 8--Unauthorised disclosure of information

3ZZHA Unauthorised disclosure of information

(1) A person commits an offence if:

(a) the person discloses information; and

(b) the information relates to:

(i) an application for a delayed notification search warrant;

(ii) the execution of a delayed notification search warrant;

(iii) a report under section 3ZZFA in relation to a delayed

notification search warrant; or

(iv) a warrant premises occupier's notice or an adjoining

premises occupier's notice prepared in relation to a

delayed notification search warrant.

Penalty: Imprisonment for 2 years.

(2) Each of the following is an exception to the offence created by

subsection (1):

(a) the disclosure is in connection with the administration or

execution of this Part;

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(b) the disclosure is for the purposes of any legal proceeding

arising out of or otherwise related to this Part or of any report

of any such proceedings;

by law;

(d) the disclosure is for the purposes of:

(i) the performance of duties or functions or the exercise of

powers under or in relation to this Part; or

(ii) the performance of duties or functions or the exercise of

powers by a law enforcement officer, an officer of the

Australian Security Intelligence Organisation, a staff

member of the Australian Secret Intelligence Service or

a person seconded to either of those bodies;

(e) the disclosure is made after a warrant premises occupier's

notice or an adjoining premises occupier's notice has been

given in relation to the warrant;

(f) the disclosure is made after a direction has been given under

subsection 3ZZDA(4) or 3ZZDB(4) in relation to the

warrant.

Note:

A defendant bears an evidential burden in relation to a matter in

subsection (2)--see subsection 13.3(3) of the Criminal Code.

Division 9--Other matters

3ZZIA Delegation

Delegation by chief officer

(1) The chief officer of an authorised agency or eligible agency may,

in writing, delegate all or any of the chief officer's powers,

functions or duties under this Part to:

(a) a Deputy Commissioner of the Australian Federal Police; or

(b) a senior executive AFP employee who is a member of the

Australian Federal Police and who is authorised in writing by

the Commissioner for the purposes of this paragraph.

(2) The chief officer of an authorised agency or eligible agency may,

in writing, delegate all or any of the chief officer's powers,

functions or duties under Division 5 to the chief executive officer

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(however described) of a State or Territory law enforcement

agency.

(3) The chief officer of an authorised agency or eligible agency may,

in writing, delegate all or any of the chief officer's powers,

functions or duties under Division 5 to a Commonwealth officer if

the chief officer is satisfied on reasonable grounds that the

Commonwealth officer is able to properly exercise those powers,

functions or duties.

Delegation by Ombudsman

(4) The Ombudsman may, in writing, delegate all or any of the

Ombudsman's powers under this Part, other than a power to report

to the Minister, to an APS employee responsible to the

Ombudsman.

Delegate must produce delegation on request

(5) A delegate must, upon request by a person affected by the exercise

of any power delegated to the delegate, produce the instrument of

delegation, or a copy of the instrument, for inspection by the

person.

3ZZIB Law relating to legal professional privilege not affected

Except as expressly provided, this Part does not affect the law

relating to legal professional privilege.

Note:

Section 3ZZGE expressly overrides legal professional privilege.

52 Paragraphs 15AA(2)(c) and (d)

After "provision of", insert "Subdivision C of".

53 After paragraph 15YU(1)(f)

Insert:

(fa) an offence against Part 5.5 of the Criminal Code; or

54 Paragraph 15YU(1)(j)

Repeal the paragraph.

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55 Application of amendments

Despite the repeal of paragraph 15YU(1)(j) of the Crimes Act 1914 by

this Schedule, that paragraph continues to apply after this item

commences in relation to any proceedings for an offence against the

Crimes (Foreign Incursions and Recruitment) Act 1978 (whether those

proceedings commence before, on or after the commencement of this

item).

56 Subsection 23DB(1) (note)

Omit "3W(2)", substitute "3WA(2)".

Criminal Code Act 1995

57 Part 5.1 of the Criminal Code (heading)

Repeal the heading, substitute:

Part 5.1--Treason, urging violence and advocating

terrorism

58 Division 80 of the Criminal Code (heading)

Repeal the heading, substitute:

Division 80--Treason, urging violence and advocating

terrorism

59 Subsection 80.1AA(6) of the Criminal Code

After "conduct", insert "solely".

60 Subdivision C of Division 80 of the Criminal Code

(heading)

Repeal the heading, substitute:

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Subdivision C--Urging violence and advocating terrorism

61 At the end of Subdivision C of Division 80 of the Criminal

Code

Add:

80.2C Advocating terrorism

(1) A person commits an offence if:

(a) the person advocates:

(i) the doing of a terrorist act; or

(ii) the commission of a terrorism offence referred to in

subsection (2); and

(b) the person engages in that conduct reckless as to whether

another person will:

(i) engage in a terrorist act; or

(ii) commit a terrorism offence referred to in subsection (2).

Note:

There is a defence in section 80.3 for acts done in good faith.

Penalty: Imprisonment for 5 years.

(2) A terrorism offence is referred to in this subsection if:

(a) the offence is punishable on conviction by imprisonment for

5 years or more; and

(b) the offence is not:

(i) an offence against section 11.1 (attempt), 11.4

(incitement) or 11.5 (conspiracy) to the extent that it

relates to a terrorism offence; or

(ii) a terrorism offence that a person is taken to have

committed because of section 11.2 (complicity and

common purpose), 11.2A (joint commission) or 11.3

(commission by proxy).

Definitions

(3) In this section:

advocates: a person advocates the doing of a terrorist act or the

commission of a terrorism offence if the person counsels,

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promotes, encourages or urges the doing of a terrorist act or the

commission of a terrorism offence.

terrorism offence has the same meaning as in subsection 3(1) of

the Crimes Act 1914.

terrorist act has the same meaning as in section 100.1.

(4) A reference in this section to advocating the doing of a terrorist act

or the commission of a terrorism offence includes a reference to:

(a) advocating the doing of a terrorist act or the commission of a

terrorism offence, even if a terrorist act or terrorism offence

does not occur; and

(b) advocating the doing of a specific terrorist act or the

commission of a specific terrorism offence; and

commission of more than one terrorism offence.

62 Subsection 80.4(2) of the Criminal Code

Omit "or 80.2B(2)", substitute ", 80.2B(2) or 80.2C(1)".

63 Subsection 102.1(1) of the Criminal Code (paragraph (a) of

the definition of terrorist organisation)

Omit "(whether or not a terrorist act occurs)".

64 Paragraph 102.1(1A)(a) of the Criminal Code

After "counsels", insert ", promotes, encourages".

65 Subsections 102.1(2), (4) and (17) of the Criminal Code

Omit "(whether or not a terrorist act has occurred or will occur)"

(wherever occurring).

66 At the end of section 102.1 of the Criminal Code

Add:

(20) In this section, a reference to the doing of a terrorist act includes:

(a) a reference to the doing of a terrorist act, even if a terrorist

act does not occur; and

(b) a reference to the doing of a specific terrorist act; and

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67 After section 102.1 of the Criminal Code

Insert:

102.1AA Including or removing names of prescribed terrorist

organisations

(1) This section applies if the Minister is satisfied on reasonable

grounds that:

(a) an organisation is specified in regulations made for the

purposes of paragraph (b) of the definition of terrorist

organisation in subsection 102.1(1); and

(b) the organisation:

(i) is referred to by another name (the alias), in addition to,

or instead of, a name used to specify the organisation in

the regulations; or

(ii) no longer uses a name (the former name) used in the

regulations to specify the organisation.

(2) The Minister may, by legislative instrument, amend the regulations

to do either or both of the following:

(a) include the alias in the regulations if the Minister is satisfied

as referred to in subparagraph (1)(b)(i);

(b) remove the former name from the regulations if the Minister

is satisfied as referred to in subparagraph (1)(b)(ii).

(3) Amendment of regulations under subsection (2) does not:

(a) prevent the further amendment or repeal of the regulations by

regulations made under section 5 of this Act for the purposes

of paragraph (b) of the definition of terrorist organisation in

subsection 102.1(1); or

(b) affect when the amended regulations cease to have effect

under section 102.1.

(4) The Minister may not, by legislative instrument made under this

section, amend the regulations to remove entirely an organisation

that has been prescribed.

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(5) To avoid doubt, this section does not affect the power under

section 5 of this Act to make regulations for the purposes of

paragraph (b) of the definition of terrorist organisation in

subsection 102.1(1).

68 Section 102.5 of the Criminal Code (heading)

Repeal the heading, substitute:

102.5 Training involving a terrorist organisation

69 Paragraphs 102.5(1)(a) and 102.5(2)(a) of the Criminal

Code

Repeal the paragraphs, substitute:

(a) the person does any of the following:

(i) intentionally provides training to an organisation;

(ii) intentionally receives training from an organisation;

(iii) intentionally participates in training with an

organisation; and

70 Paragraph 104.2(2)(a) of the Criminal Code

Omit "considers", substitute "suspects".

71 Paragraph 104.2(2)(b) of the Criminal Code

Repeal the paragraph, substitute:

(b) suspects on reasonable grounds that the person has:

(i) provided training to, received training from or

participated in training with a listed terrorist

organisation; or

(ii) engaged in a hostile activity in a foreign country (within

the meaning of subsection 117.1(1)); or

(iii) been convicted in Australia or a foreign country of an

offence relating to terrorism, a terrorist organisation

(within the meaning of subsection 102.1(1)) or a

terrorist act (within the meaning of section 100.1).

72 At the end of section 104.2 of the Criminal Code

Add:

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(6) In paragraphs (2)(a) and (b), a reference to a terrorist act includes:

(a) a reference to a terrorist act that does not occur; and

(b) a reference to a specific terrorist act; and

73 Subparagraph 104.4(1)(c)(ii) of the Criminal Code

Repeal the subparagraph, substitute:

(ii) that the person has provided training to, received

training from or participated in training with a listed

terrorist organisation; or

(iii) that the person has engaged in a hostile activity in a

foreign country (within the meaning of

subsection 117.1(1)); or

(iv) that the person has been convicted in Australia or a

foreign country of an offence relating to terrorism, a

terrorist organisation (within the meaning of

subsection 102.1(1)) or a terrorist act (within the

meaning of section 100.1); and

74 At the end of section 104.4 of the Criminal Code

Add:

(4) In paragraphs (1)(c) and (d), a reference to a terrorist act includes:

(a) a reference to a terrorist act that does not occur; and

(b) a reference to a specific terrorist act; and

75 At the end of paragraph 104.5(3)(c) of the Criminal Code

Add ", but for no more than 12 hours within any 24 hours".

76 Paragraphs 104.6(1)(b) and 104.8(1)(b) of the Criminal

Code

Omit "either considers or".

77 Subparagraph 104.12(1)(b)(iii) of the Criminal Code

Omit "appropriate); and", substitute "appropriate);".

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78 At the end of paragraph 104.12(1)(b) of the Criminal Code

Add:

(iv) that the person may have appeal and review rights in

relation to the decision of the issuing court to make the

order;

(v) the person's right to attend court on the day specified

for the purposes of paragraph 104.5(1)(e);

(vi) the right of the person or one or more representatives of

the person, and (if relevant) the right of the Queensland

public interest monitor, to adduce evidence or make

submissions under subsection 104.14(1) if the order is

confirmed;

(vii) that the person may have appeal and review rights in

relation to any decision of the issuing court to confirm

the order;

(viii) the person's right to apply under section 104.18 for an

order revoking or varying the order if it is confirmed;

(ix) the right of the person or one or more representatives of

the person, and (if relevant) the right of the Queensland

public interest monitor, to adduce evidence or make

submissions under subsection 104.19(3) or 104.23(4) in

relation to an application to revoke or vary the order if it

is confirmed; and

79 Section 104.17 of the Criminal Code

Before "As soon as practicable", insert "(1)".

80 Section 104.17 of the Criminal Code

Omit all the words after "section 104.14,", substitute:

an AFP member must:

(a) serve the declaration, the revocation or the confirmed control

order personally on the person; and

(b) if the court confirms the interim order (with or without

variation)--inform the person of the following:

(i) that the person may have appeal and review rights in

relation to the decision of the issuing court to confirm

the order;

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(ii) the person's right to apply under section 104.18 for an

order revoking or varying the order;

(iii) the right of the person or one or more representatives of

the person, and (if relevant) the right of the Queensland

public interest monitor, to adduce evidence or make

submissions under subsection 104.19(3) or 104.23(4) in

relation to an application to revoke or vary the order;

and

the information provided under that paragraph (taking into

account the person's age, language skills, mental capacity

and any other relevant factor).

81 At the end of section 104.17 of the Criminal Code

Add:

(2) Paragraphs (1)(b) and (c) do not apply if the actions of the person

in relation to whom the interim control order has been declared

void, revoked or confirmed make it impracticable for the AFP

member to comply with those paragraphs.

(3) A failure to comply with paragraph (1)(c) does not make the

control order ineffective to any extent.

82 At the end of section 104.23 of the Criminal Code

Add:

(6) In subsection (1), a reference to a terrorist act includes:

(a) a reference to a terrorist act that does not occur; and

(b) a reference to a specific terrorist act; and

83 At the end of section 104.24 of the Criminal Code

Add:

(4) In paragraph (1)(b), a reference to a terrorist act includes:

(a) a reference to a terrorist act that does not occur; and

(b) a reference to a specific terrorist act; and

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84 Subparagraph 104.26(1)(c)(ii) of the Criminal Code

Omit "appropriate); and", substitute "appropriate);".

85 At the end of paragraph 104.26(1)(c) of the Criminal Code

Add:

(iii) that the person may have appeal and review rights in

relation to the decision of the issuing court to vary the

order;

(iv) the person's right to apply under section 104.18 for an

order revoking or varying the order;

(v) the right of the person or one or more representatives of

the person, and (if relevant) the right of the Queensland

public interest monitor, to adduce evidence or make

submissions under subsection 104.19(3) or 104.23(4) in

relation to an application to revoke or vary the order;

and

86 Subsection 104.32(1) of the Criminal Code

Omit "10 years after the day on which this Division commences",

substitute "15 December 2025".

87 Subsection 104.32(2) of the Criminal Code

Omit "the end of 10 years after the day on which this Division

commences", substitute "15 December 2025".

88 Subsection 105.4(4) of the Criminal Code

Repeal the subsection, substitute:

(4) A person meets the requirements of this subsection if:

(a) in the case of an AFP member--the member suspects, on

reasonable grounds, that the subject:

(i) will engage in a terrorist act; or

(ii) possesses a thing that is connected with the preparation

for, or the engagement of a person in, a terrorist act; or

(iii) has done an act in preparation for, or planning, a

terrorist act; and

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(b) in the case of an issuing authority--the issuing authority is

satisfied there are reasonable grounds to suspect that the

subject:

(i) will engage in a terrorist act; or

(ii) possesses a thing that is connected with the preparation

for, or the engagement of a person in, a terrorist act; or

(iii) has done an act in preparation for, or planning, a

terrorist act; and

substantially assist in preventing a terrorist act occurring; and

(d) the person is satisfied that detaining the subject for the period

for which the person is to be detained under the order is

reasonably necessary for the purpose referred to in

paragraph (c).

89 Paragraph 105.4(6)(b) of the Criminal Code

Before "necessary", insert "reasonably".

90 Paragraph 105.7(2)(a) of the Criminal Code

Repeal the paragraph, substitute:

(a) be made either:

(i) in writing (other than writing by means of an electronic

communication); or

(ii) if the AFP member considers it necessary because of

urgent circumstances--orally in person or by telephone,

or by fax, email or other electronic means of

communication; and

91 After subsection 105.7(2A) of the Criminal Code

Insert:

(2B) If the application is made orally, information given by the AFP

member to the issuing authority in connection with the application

must be verified or given on oath or affirmation, unless the issuing

authority is satisfied that it is not practical to administer an oath or

affirmation to the member.

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92 Subsection 105.8(1) of the Criminal Code

After "authority may", insert ", subject to subsection (1A),".

93 After subsection 105.8(1) of the Criminal Code

Insert:

(1A) If the application is made orally in person or by telephone, or by

fax, email or other electronic means of communication, the issuing

authority must not make the order unless the issuing authority is

satisfied that it is necessary, because of urgent circumstances, to

apply for the order by such means.

94 Paragraph 105.8(6)(a) of the Criminal Code

After "name", insert "or description".

95 After subsection 105.8(7) of the Criminal Code

Insert:

(7A) If the order is made on an application that was made orally (see

subparagraph 105.7(2)(a)(ii)), the issuing authority must either:

(a) ensure that there is an audio, or audio-visual, recording of the

application; or

(b) as soon as practicable after the order is made, make a written

record of the details of the application, including any

information given in support of it.

96 Paragraph 105.12(6)(a) of the Criminal Code

After "name", insert "or description".

97 After subsection 105.15(1) of the Criminal Code

Insert:

(1A) The application for the prohibited contact order may be made

either:

(a) in writing (other than writing by means of an electronic

communication); or

(b) if the AFP member considers it necessary because of urgent

circumstances--orally in person or by telephone, or by fax,

email or other electronic means of communication.

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98 Subsection 105.15(3) of the Criminal Code

Repeal the subsection, substitute:

(3) If:

(a) a continued preventative detention order is being applied for;

and

(b) the application for the prohibited contact order is made in

accordance with paragraph (1A)(a);

the information in the application for the prohibited contact order

must be sworn or affirmed by the AFP member.

(3A) If:

(a) a continued preventative detention order is being applied for;

and

(b) the application for the prohibited contact order is made in

accordance with paragraph (1A)(b);

the information in the application for the prohibited contact order

must be sworn or affirmed by the AFP member unless the issuing

authority is satisfied that it is not practical to administer an oath or

affirmation to the member.

99 Subsection 105.15(4) of the Criminal Code

After "authority may", insert ", subject to subsection (4A),".

100 After subsection 105.15(4) of the Criminal Code

Insert:

(4A) If the application for the prohibited contact order is made orally in

person or by telephone, or by fax, email or other electronic means

of communication, the issuing authority must not make the order

unless the issuing authority is satisfied that it was necessary,

because of urgent circumstances, to apply for the order by such

means.

101 At the end of section 105.15 of the Criminal Code

Add:

(7) If the prohibited contact order is made on an application that was

made orally, the issuing authority must either:

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(a) ensure that there is an audio, or audio-visual, recording of the

application; or

(b) as soon as practicable after the order is made, make a written

record of the details of the application, including any

information given in support of it.

102 After subsection 105.16(1) of the Criminal Code

Insert:

(1A) The application may be made either:

(a) in writing (other than writing by means of an electronic

communication); or

(b) if the AFP member considers it necessary because of urgent

circumstances--orally in person or by telephone, or by fax,

email or other electronic means of communication.

103 Subsection 105.16(3) of the Criminal Code

Repeal the subsection, substitute:

(3) If:

(a) the preventative detention order is a continued preventative

detention order; and

(b) the application for the prohibited contact order is made in

accordance with paragraph (1A)(a);

the information in the application for the prohibited contact order

must be sworn or affirmed by the AFP member.

(3A) If:

(a) the preventative detention order is a continued preventative

detention order; and

(b) the application for the prohibited contact order is made in

accordance with paragraph (1A)(b);

the information in the application for the prohibited contact order

must be sworn or affirmed by the AFP member unless the issuing

authority is satisfied that it is not practical to administer an oath or

affirmation to the member.

104 Subsection 105.16(4) of the Criminal Code

After "authority may", insert ", subject to subsection (4A),".

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105 After subsection 105.16(4) of the Criminal Code

Insert:

(4A) If the application for the prohibited contact order is made orally in

person or by telephone, or by fax, email or other electronic means

of communication, the issuing authority must not make the order

unless the issuing authority is satisfied that it was necessary,

because of urgent circumstances, to apply for the order by such

means.

106 At the end of section 105.16 of the Criminal Code

Add:

(7) If the prohibited contact order is made on an application that was

made orally, the issuing authority must either:

(a) ensure there is an audio, or audio-visual, recording of the

application; or

(b) as soon as practicable after the order is made, make a written

record of the details of the application, including any

information given in support of it.

107 Subsection 105.53(1) of the Criminal Code

Omit "10 years after the day on which this Division commences",

substitute "15 December 2025".

108 Subsection 105.53(2) of the Criminal Code

Omit "the end of 10 years after the day on which this Division

commences", substitute "15 December 2025".

109 At the end of Division 106 of the Criminal Code

Add:

106.5 Application provisions for certain amendments in the

Counter-Terrorism Legislation Amendment (Foreign

Fighters) Act 2014

(1) The amendments of section 102.1, made by Schedule 1 to the

Counter-Terrorism Legislation Amendment (Foreign Fighters) Act

2014, do not affect the continuity of any regulations that are in

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force for the purposes of that section immediately before the

commencement of this section.

(2) Section 104.2, as amended by Schedule 1 to the Counter-Terrorism

Legislation Amendment (Foreign Fighters) Act 2014, applies to

requests for interim control orders made after the commencement

of this section, where the conduct in relation to which the request is

made occurs before or after that commencement.

(3) Section 104.4, as amended by Schedule 1 to the Counter-Terrorism

Legislation Amendment (Foreign Fighters) Act 2014, applies to the

making of orders requested after the commencement of this

section, where the conduct in relation to which the request is made

occurs before or after that commencement.

(4) Sections 104.6 and 104.8, as amended by Schedule 1 to the

Counter-Terrorism Legislation Amendment (Foreign Fighters) Act

2014, apply to the making of requests after the commencement of

this section, where the conduct in relation to which the request is

made occurs before or after that commencement.

(5) Section 105.4, as amended by Schedule 1 to the Counter-Terrorism

Legislation Amendment (Foreign Fighters) Act 2014, applies in

relation to applications for preventative detention orders made after

the commencement of this section.

(6) Section 105.7, as amended by Schedule 1 to the Counter-Terrorism

Legislation Amendment (Foreign Fighters) Act 2014, applies in

relation to applications for initial preventative detention orders

made after the commencement of this section.

(7) Section 105.8, as amended by Schedule 1 to the Counter-Terrorism

Legislation Amendment (Foreign Fighters) Act 2014, applies in

relation to initial preventative detention orders made after the

commencement of this section.

(8) Section 105.12, as amended by Schedule 1 to the

Counter-Terrorism Legislation Amendment (Foreign Fighters) Act

2014, applies in relation to continued preventative detention orders

made after the commencement of this section, regardless of when

the initial preventative detention order to which the continued

order relates was made.

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(9) Section 105.15, as amended by Schedule 1 to the

Counter-Terrorism Legislation Amendment (Foreign Fighters) Act

2014, applies in relation to applications for prohibited contact

orders made after the commencement of this section, regardless of

when the application for the preventative detention order to which

the prohibited contact order relates was made.

(10) Section 105.16, as amended by Schedule 1 to the

Counter-Terrorism Legislation Amendment (Foreign Fighters) Act

2014, applies in relation to applications for prohibited contact

orders made after the commencement of this section, regardless of

when the preventative detention order to which the prohibited

contact order relates was made.

110 At the end of Chapter 5 of the Criminal Code

Add:

Part 5.5--Foreign incursions and recruitment

Division 117--Preliminary

117.1 Definitions

(1) In this Part:

armed force does not include an armed force forming part of the

Australian Defence Force.

Defence Minister means the Minister administering the Defence

Force Discipline Act 1982.

engage in a hostile activity: a person engages in a hostile activity

in a foreign country if the person engages in conduct in that

country with the intention of achieving one or more of the

following objectives (whether or not such an objective is

achieved):

(a) the overthrow by force or violence of the government of that

or any other foreign country (or of a part of that or any other

foreign country);

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(b) the engagement, by that or any other person, in subverting

society in that or any other foreign country;

any other foreign country;

(d) causing the death of, or bodily injury to, a person who:

(i) is the head of state of that or any other foreign country;

(ii) holds, or performs any of the duties of, a public office

of that or any other foreign country (or of a part of that

or any other foreign country);

(e) unlawfully destroying or damaging any real or personal

property belonging to the government of that or any other

foreign country (or of a part of that or any other foreign

country).

engage in subverting society has the meaning given by

subsection (3).

Foreign Affairs Minister means the Minister administering the

Diplomatic Privileges and Immunities Act 1967.

government of a foreign country or a part of a foreign country

means the authority exercising effective governmental control in

that foreign country or that part of that foreign country.

listed terrorist organisation has the meaning given by

subsection 100.1(1).

military training means training in the use of arms or explosives,

or the practice of military exercises or movements.

prescribed organisation is:

(a) an organisation that is prescribed by the regulations for the

purposes of this paragraph; or

(b) an organisation referred to in paragraph (b) of the definition

of terrorist organisation in subsection 102.1(1).

recruit includes induce, incite or encourage.

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Prescribing organisations

(2) Before the Governor-General makes a regulation prescribing an

organisation for the purposes of paragraph (a) of the definition of

prescribed organisation in subsection (1), the Minister must be

satisfied on reasonable grounds that the organisation is directly or

indirectly engaged in, preparing, planning, assisting in or fostering:

(a) a serious violation of human rights; or

(b) subverting society in Australia or a foreign country allied or

associated with Australia (see subsection (3)); or

(d) an act prejudicial to the security, defence or international

relations of Australia.

(3) A person engages in subverting society if the person engages in

any of the following conduct (other than conduct that falls within

subsection (4)):

(a) conduct that causes serious harm that is physical harm to

another person;

(b) conduct that causes serious damage to property;

(d) conduct that endangers another person's life, other than the

life of the person taking the action;

(e) conduct that creates a serious risk to the health or safety of

the public or a section of the public;

(f) conduct that seriously interferes with, seriously disrupts, or

destroys, an electronic system including, but not limited to:

(i) an information system; or

(ii) a telecommunications system; or

(iii) a financial system; or

(iv) a system used for the delivery of essential government

services; or

(v) a system used for, or by, an essential public utility; or

(vi) a system used for, or by, a transport system.

(4) Conduct falls within this subsection if it:

(a) is advocacy, protest, dissent or industrial action; and

(b) is not intended:

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(i) to cause serious harm that is physical harm to a person;

(ii) to cause a person's death; or

(iii) to endanger the life of a person, other than the person

taking the action; or

(iv) to create a serious risk to the health or safety of the

public or a section of the public.

117.2 Extended geographical jurisdiction--category D

Section 15.4 (extended geographical jurisdiction--category D)

applies (subject to this Part) to an offence against this Part.

Division 119--Foreign incursions and recruitment

119.1 Incursions into foreign countries with the intention of

engaging in hostile activities

Offence for entering foreign countries with the intention of

engaging in hostile activities

(1) A person commits an offence if:

(a) the person enters a foreign country with the intention of

engaging in a hostile activity in that or any other foreign

country; and

(b) when the person enters the country, the person:

(i) is an Australian citizen; or

(ii) is a resident of Australia; or

(iii) is a holder under the Migration Act 1958 of a visa; or

(iv) has voluntarily put himself or herself under the

protection of Australia.

Penalty: Imprisonment for life.

Offence for engaging in a hostile activity in a foreign country

(2) A person commits an offence if:

(a) the person engages in a hostile activity in a foreign country;

and

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(b) when the person engages in the activity, the person:

(i) is an Australian citizen; or

(ii) is a resident of Australia; or

(iii) is a holder under the Migration Act 1958 of a visa; or

(iv) has voluntarily put himself or herself under the

protection of Australia.

Penalty: Imprisonment for life.

Absolute liability element

(3) Absolute liability applies to paragraphs (1)(b) and (2)(b).

Note:

For absolute liability, see section 6.2.

Exception

(4) Subsections (1) and (2) do not apply to an act done by a person in

the course of, and as part of, the person's service in any capacity in

or with:

(a) the armed forces of the government of a foreign country; or

(b) any other armed force if a declaration under

subsection 119.8(1) covers the person and the circumstances

of the person's service in or with the force.

Note 1:

A defendant bears an evidential burden in relation to the matter in

subsection (4): see subsection 13.3(3).

Note 2:

For conduct for the defence or international relations of Australia, see

section 119.9.

(5) Paragraph (4)(a) does not apply if:

(a) the person intends to engage, or engages, in a hostile activity

in a foreign country while in or with an organisation; and

(b) the organisation is a prescribed organisation at the following

time:

(i) for subsection (1)--the time of the entry referred to in

that subsection;

(ii) for subsection (2)--the time the person engages in the

hostile activity referred to in that subsection.

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119.2 Entering, or remaining in, declared areas

(1) A person commits an offence if:

(a) the person enters, or remains in, an area in a foreign country;

and

(b) the area is an area declared by the Foreign Affairs Minister

under section 119.3; and

person is in the area, the person:

(i) is an Australian citizen; or

(ii) is a resident of Australia; or

(iii) is a holder under the Migration Act 1958 of a visa; or

(iv) has voluntarily put himself or herself under the

protection of Australia.

Penalty: Imprisonment for 10 years.

Absolute liability element

(2) Absolute liability applies to paragraph (1)(c).

Note:

For absolute liability, see section 6.2.

Exception--entering or remaining solely for legitimate purposes

(3) Subsection (1) does not apply if the person enters, or remains in,

the area solely for one or more of the following purposes:

(a) providing

aid of a humanitarian nature;

(b) satisfying an obligation to appear before a court or other

body exercising judicial power;

a Territory;

(d) performing an official duty for the government of a foreign

country or the government of part of a foreign country

(including service in the armed forces of the government of a

foreign country), where that performance would not be a

violation of the law of the Commonwealth, a State or a

Territory;

(e) performing an official duty for the United Nations or an

agency of the United Nations;

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(f) making a news report of events in the area, where the person

is working in a professional capacity as a journalist or is

assisting another person working in a professional capacity as

a journalist;

(g) making a bona fide visit to a family member;

(h) any other purpose prescribed by the regulations.

Note:

A defendant bears an evidential burden in relation to the matter in

subsection (3): see subsection 13.3(3).

Exception--entering or remaining solely for service with armed

force other than prescribed organisation

(4) Subsection (1) does not apply if the person enters, or remains in,

the area solely in the course of, and as part of, the person's service

in any capacity in or with:

(a) the armed forces of the government of a foreign country; or

(b) any other armed force if a declaration under

subsection 119.8(1) covers the person and the circumstances

of the person's service in or with the force.

Note:

A defendant bears an evidential burden in relation to the matter in

subsection (4): see subsection 13.3(3).

(5) However, subsection (4) does not apply if:

(a) the person enters, or remains in, an area in a foreign country

while in or with an organisation; and

(b) the organisation is a prescribed organisation at the time the

person enters or remains in the area as referred to in

paragraph (1)(a).

Note 1:

For conduct for the defence or international relations of Australia, see

section 119.9.

Note 2:

Sections 10.1 and 10.3 also provide exceptions to subsection (1) of

this section (relating to intervening conduct or event and sudden or

extraordinary emergency respectively).

Sunset provision

(6) This section ceases to have effect 10 years after it commences.

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119.3 Declaration of areas for the purposes of section 119.2

(1) The Foreign Affairs Minister may, by legislative instrument,

declare an area in a foreign country for the purposes of

section 119.2 if he or she is satisfied that a listed terrorist

organisation is engaging in a hostile activity in that area of the

foreign country.

(2) A single declaration may cover:

(a) areas in 2 or more foreign countries if the Foreign Affairs

Minister is satisfied that one or more listed terrorist

organisations are engaging in a hostile activity in each of

those areas; or

(b) an entire country if the Foreign Affairs Minister is satisfied

that a listed terrorist organisation is engaging in a hostile

activity throughout the country.

Requirement to brief Leader of the Opposition

(3) Before making a declaration, the Foreign Affairs Minister must

arrange for the Leader of the Opposition in the House of

Representatives to be briefed in relation to the proposed

declaration.

Cessation of declaration

(4) A declaration ceases to have effect on the third anniversary of the

day on which it takes effect. To avoid doubt, this subsection does

not prevent:

(a) the revocation of the declaration; or

(b) the making of a new declaration the same in substance as the

previous declaration (whether the new declaration is made or

takes effect before or after the previous declaration ceases to

have effect because of this subsection).

Note:

An offence committed in relation to the declared area before the

cessation can be prosecuted after the cessation: see section 7 of the

Acts Interpretation Act 1901 as it applies because of

paragraph 13(1)(a) of the Legislative Instruments Act 2003.

(5) If:

(a) an area is declared under subsection (1); and

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(b) the Foreign Affairs Minister ceases to be satisfied that a

listed terrorist organisation is engaging in a hostile activity in

the area;

the Foreign Affairs Minister must revoke the declaration.

Note:

The Foreign Affairs Minister may, for example, cease to be satisfied

that a listed terrorist organisation is engaging in a hostile activity in

the area if the organisation ceases to be specified in the regulations.

(6) To avoid doubt, subsection (5) does not prevent an area from being

subsequently declared if the Foreign Affairs Minister becomes

satisfied as mentioned in subsection (1).

119.4 Preparations for incursions into foreign countries for purpose

of engaging in hostile activities

Preparatory acts

(1) A person commits an offence if:

(a) the person engages in conduct (whether within or outside

Australia); and

(b) the conduct is preparatory to the commission of an offence

against section 119.1 (whether by that or any other person);

and

(i) is an Australian citizen; or

(ii) is a resident of Australia; or

(iii) is a holder under the Migration Act 1958 of a visa; or

(iv) has voluntarily put himself or herself under the

protection of Australia; or

(v) is a body corporate incorporated by or under a law of

the Commonwealth or of a State or Territory.

Penalty: Imprisonment for life.

Accumulating weapons etc.

(2) A person commits an offence if:

(a) the person (whether within or outside Australia) accumulates,

stockpiles or otherwise keeps arms, explosives, munitions,

poisons or weapons; and

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(b) the person engages in that conduct with the intention that an

offence against section 119.1 will be committed (whether by

that or any other person); and

(i) is an Australian citizen; or

(ii) is a resident of Australia; or

(iii) is a holder under the Migration Act 1958 of a visa; or

(iv) has voluntarily put himself or herself under the

protection of Australia; or

(v) is a body corporate incorporated by or under a law of

the Commonwealth or of a State or Territory.

Penalty: Imprisonment for life.

Providing or participating in training

(3) A person commits an offence if:

(a) the person engages in any of the following conduct (whether

within or outside Australia):

(i) providing military training to another person;

(ii) participating in providing military training to another

person;

(iii) being present at a meeting or assembly of persons,

where the person intends at that meeting or assembly to

provide, or participate in providing, military training to

another person; and

(b) the person engages in the conduct intending to prepare the

other person to commit an offence against section 119.1; and

(i) is an Australian citizen; or

(ii) is a resident of Australia; or

(iii) is a holder under the Migration Act 1958 of a visa; or

(iv) has voluntarily put himself or herself under the

protection of Australia; or

(v) is a body corporate incorporated by or under a law of

the Commonwealth or of a State or Territory.

Penalty: Imprisonment for life.

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(4) A person commits an offence if:

(a) the person engages in conduct of either of the following

kinds (whether within or outside Australia):

(i) allowing military training to be provided to himself or

herself;

(ii) allowing himself or herself to be present at a meeting or

assembly of persons intending to allow military training

to be provided to himself or herself; and

(b) the person engages in the conduct with the intention of

committing an offence against section 119.1; and

(i) is an Australian citizen; or

(ii) is a resident of Australia; or

(iii) is a holder under the Migration Act 1958 of a visa; or

(iv) has voluntarily put himself or herself under the

protection of Australia; or

(v) is a body corporate incorporated by or under a law of

the Commonwealth or of a State or Territory.

Penalty: Imprisonment for life.

Giving or receiving goods and services to promote the commission

of an offence

(5) A person commits an offence if:

(a) the person engages in any of the following conduct (whether

within or outside Australia):

(i) giving money or goods to, or performing services for,

any other person, body or association;

(ii) receiving or soliciting money or goods, or the

performance of services; and

(b) the person engages in the conduct with the intention of

supporting or promoting the commission of an offence

against section 119.1; and

(i) is an Australian citizen; or

(ii) is a resident of Australia; or

(iii) is a holder under the Migration Act 1958 of a visa; or

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(iv) has voluntarily put himself or herself under the

protection of Australia; or

(v) is a body corporate incorporated by or under a law of

the Commonwealth or of a State or Territory.

Penalty: Imprisonment for life.

Absolute liability element

(6) Absolute liability applies to paragraphs (1)(c), (2)(c), (3)(c), (4)(c)

and (5)(c).

Note:

For absolute liability, see section 6.2.

Exception

(7) This section does not apply if the person engages in conduct solely

by way of, or for the purposes of, the provision of aid of a

humanitarian nature.

Note 1:

A defendant bears an evidential burden in relation to the matter in

subsection (7): see subsection 13.3(3).

Note 2:

For conduct for the defence or international relations of Australia, see

section 119.9.

Disregarding paragraphs 119.1(1)(b) and (2)(b)

(8) A reference in this section to the commission of an offence against

section 119.1 includes a reference to doing an act that would

constitute an offence against section 119.1 if paragraphs

119.1(1)(b) and (2)(b) were disregarded.

119.5 Allowing use of buildings, vessels and aircraft to commit

offences

Use of buildings

(1) A person commits an offence if:

(a) the person is an owner, lessee, occupier, agent or

superintendent of any building, room, premises or other

place; and

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(b) the person permits a meeting or assembly of persons to be

held in that place (whether the person or the place is within

or outside Australia); and

person intends to commit, or support or promote the

commission of, an offence against section 119.4; and

(d) when the person permits the meeting to be so held, the

person:

(i) is an Australian citizen; or

(ii) is a resident of Australia; or

(iii) is a holder under the Migration Act 1958 of a visa; or

(iv) has voluntarily put himself or herself under the

protection of Australia; or

(v) is a body corporate incorporated by or under a law of

the Commonwealth or of a State or Territory.

Penalty: Imprisonment for life.

Use of vessels or aircraft

(2) A person commits an offence if:

(a) the person is:

(i) an owner, charterer, lessee, operator, agent or master of

a vessel; or

(ii) an owner, charterer, lessee, operator or pilot in charge of

an aircraft; and

(b) the person permits the vessel or aircraft to be used (whether

the person, vessel or aircraft is within or outside Australia);

and

support or promote the commission of, an offence against

section 119.4; and

(d) when the person permits the use, the person:

(i) is an Australian citizen; or

(ii) is a resident of Australia; or

(iii) is a holder under the Migration Act 1958 of a visa; or

(iv) has voluntarily put himself or herself under the

protection of Australia; or

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(v) is a body corporate incorporated by or under a law of

the Commonwealth or of a State or Territory.

Penalty: Imprisonment for life.

Absolute liability element

(3) Absolute liability applies to paragraphs (1)(d) and (2)(d).

Note:

For absolute liability, see section 6.2.

Exception

(4) This section does not apply if the person engages in conduct solely

by way of, or for the purposes of, the provision of aid of a

humanitarian nature.

Note 1:

A defendant bears an evidential burden in relation to the matter in

subsection (4): see subsection 13.3(3).

Note 2:

For conduct for the defence or international relations of Australia, see

section 119.9.

119.6 Recruiting persons to join organisations engaged in hostile

activities against foreign governments

A person commits an offence if:

(a) the person recruits, in Australia, another person to become a

member of, or to serve in any capacity with, a body or

association of persons; and

(b) the objectives of the body or association include any one or

more of the objectives referred to in the definition of engage

in a hostile activity in subsection 117.1(1).

Note:

For conduct for the defence or international relations of Australia, see

section 119.9.

Penalty: Imprisonment for 25 years.

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119.7 Recruiting persons to serve in or with an armed force in a

foreign country

Recruiting others to serve with foreign armed forces

(1) A person commits an offence if the person recruits, in Australia,

another person to serve in any capacity in or with an armed force in

a foreign country.

Penalty: Imprisonment for 10 years.

Publishing recruitment advertisements

(2) A person commits an offence if:

(a) the person publishes in Australia:

(i) an advertisement; or

(ii) an item of news that was procured by the provision or

promise of money or any other consideration; and

(b) the person is reckless as to the fact that the publication of the

advertisement or item of news is for the purpose of recruiting

persons to serve in any capacity in or with an armed force in

a foreign country.

Penalty: Imprisonment for 10 years.

(3) A person commits an offence if:

(a) the person publishes in Australia:

(i) an advertisement; or

(ii) an item of news that was procured by the provision or

promise of money or any other consideration; and

(b) the advertisement or item of news contains information:

(i) relating to the place at which, or the manner in which,

persons may make applications to serve, or obtain

information relating to service, in any capacity in or

with an armed force in a foreign country; or

(ii) relating to the manner in which persons may travel to a

foreign country for the purpose of serving in any

capacity in or with an armed force in a foreign country.

Penalty: Imprisonment for 10 years.

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Facilitating recruitment

(4) A person commits an offence if:

(a) the person engages in conduct in Australia; and

(b) the person engages in the conduct intending to facilitate or

promote the recruitment of persons to serve in any capacity

in or with an armed force in a foreign country.

Penalty: Imprisonment for 10 years.

Exception

(5) This section does not apply in relation to service of a person in or

with an armed force in circumstances if a declaration under

subsection 119.8(2) covers the person and the circumstances of the

person's service in or with the armed force.

Note 1:

A defendant bears an evidential burden in relation to the matter in

subsection (5): see subsection 13.3(3).

Note 2:

For conduct for the defence or international relations of Australia, see

section 119.9.

Armed forces that are not part of the government of a foreign

country

(6) A reference in this section to an armed force in a foreign country

includes any armed force in a foreign country, whether or not the

armed force forms part of the armed forces of the government of

that foreign country.

(7) Without limiting this section, a person recruits another person to

serve in or with an armed force in a foreign country if the other

person enters a commitment or engagement to serve in any

capacity in or with an armed force, whether or not the commitment

or engagement is legally enforceable or constitutes legal or formal

enlistment in that force.

119.8 Declaration in relation to specified armed forces

Service

(1) The Minister may, by legislative instrument, declare that

section 119.1 or 119.2 does not apply to a specified person or class

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of persons in any circumstances or specified circumstances if the

Minister is satisfied that it is in the interests of the defence or

international relations of Australia to permit the service of that

person or class of persons in those circumstances in or with:

(a) a specified armed force in a foreign country; or

(b) a specified armed force in a foreign country in a specified

capacity.

Recruitment

(2) The Minister may, by legislative instrument, declare that

section 119.7 does not apply to a specified person or class of

persons in any circumstances or specified circumstances if the

Minister is satisfied that it is in the interests of the defence or

international relations of Australia to permit the recruitment in

Australia of that person or class of persons to serve in those

circumstances in or with:

(a) a specified armed force in a foreign country; or

(b) a specified armed force in a foreign country in a specified

capacity.

119.9 Exception--conduct for defence or international relations of

Australia

This Division does not apply in relation to conduct engaged in by a

person acting in the course of the person's duty to the

Commonwealth in relation to the defence or international relations

of Australia.

Note 1:

A defendant bears an evidential burden in relation to the matter in this

section: see subsection 13.3(3).

Note 2:

See also section 119.12 (declarations for the purposes of proceedings).

119.10 Mode of trial

(1) A prosecution for any of the following offences is (subject to

subsection (2)) to be on indictment:

(a) an offence against this Division;

(b) an offence against section 6 of the Crimes Act 1914, or an

ancillary offence, that relates to an offence against this

Division.

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(2) If the law of a State or Territory provides for a person who pleads

guilty to a charge in proceedings for the person's commitment for

trial on indictment to be committed to a higher court and dealt with

otherwise than on indictment, a person charged in that State or

Territory with an offence referred to in subsection (1) may be dealt

with in accordance with that law.

119.11 Consent of Attorney-General required for prosecutions

(1) Proceedings for the commitment of a person for the following must

not be instituted without the written consent of the

Attorney-General:

(a) the trial on indictment for an offence against the following

provisions:

(i) this Division;

(ii) section 6 of the Crimes Act 1914 to the extent that it

relates to an offence against this Division;

(b) the summary trial of a person for an offence referred to in

paragraph (a).

(2) However, the following steps may be taken (but no further steps in

proceedings may be taken) without consent having been given:

(a) a person may be charged with an offence referred to in

paragraph (1)(a);

(b) a person may be arrested for an offence referred to in

paragraph (1)(a), and a warrant for such an arrest may be

issued and executed;

(3) Nothing in subsection (2) prevents the discharge of the accused if

proceedings are not continued within a reasonable time.

119.12 Declarations for the purposes of proceedings

(1) The Foreign Affairs Minister may, in writing, declare that:

(a) a specified authority is in effective governmental control in a

specified foreign country or part of a foreign country; or

(b) a specified organisation is not an armed force, or part of an

armed force, of the government of a foreign country.

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(2) The Defence Minister may, in writing, declare that if a specified

person had done a specified act (being an act alleged to constitute

an offence) the person would not have been acting in the course of

the person's duty to the Commonwealth in relation to the defence

or international relations of Australia.

(3) Without limiting subsection (1) or (2), a declaration under that

subsection may be made in relation to a specified day or period.

(4) In proceedings for an offence referred to in paragraph 119.11(1)(a),

a certificate under this section is prima facie evidence of the

matters stated in the certificate.

Customs Act 1901

111 Subsection 183UA(1) (definition of terrorist act)

Repeal the definition, substitute:

terrorist act has the meaning given by section 100.1 of the

Criminal Code.

112 Subsections 183UA(4), (4A) and (5)

Repeal the subsections.

113 Subsection 228(7) (definition of terrorist act)

Repeal the definition, substitute:

terrorist act has the meaning given by section 100.1 of the

Criminal Code.

114 Application of amendments

The amendments of sections 183UA and 228 of the Customs Act 1901

made by this Schedule apply in relation to any terrorist act (whether

occurring before, on or after the commencement of this item).

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Foreign Evidence Act 1994

115 Subsection 3(1) (paragraph (c) of the definition of

designated offence)

Repeal the paragraph, substitute:

Charter of the United Nations Act 1945:

(i) Part 4 of that Act;

(ii) Part 5 of that Act, to the extent that it relates to the

Charter of the United Nations (Sanctions--Al-Qaida)

Regulations 2008; or

116 Subsection 3(1) (after paragraph (d) of the definition of

designated offence)

Insert:

(da) an offence against Subdivision B of Division 80 of the

Criminal Code; or

117 Subsection 3(1) (after paragraph (f) of the definition of

designated offence)

Insert:

(fa) an offence against Part 5.5 of the Criminal Code; or

118 Subsection 3(1) (paragraph (j) of the definition of

designated offence)

Repeal the paragraph.

119 Subsection 3(1)

Insert:

duress has the meaning given by subsection 27D(3).

foreign authority means an authority of a foreign country or of

part of a foreign country.

foreign government material means material provided by a foreign

authority to an authority of the Commonwealth.

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120 Subsection 3(1) (paragraph (a) of the definition of foreign

material)

Omit "Part 3", substitute "Parts 3 and 3A".

121 Subsection 3(1)

Insert:

member of the Australian Federal Police has the same meaning as

in the Australian Federal Police Act 1979.

senior AFP member means:

(a) the Commissioner of the Australian Federal Police; or

(b) a Deputy Commissioner of the Australian Federal Police; or

Australian Federal Police Act 1979) who is a member of the

Australian Federal Police; or

(d) a member of the Australian Federal Police occupying a

position in the Australian Federal Police that is equivalent to

or higher than one of the positions mentioned in

paragraphs (a), (b) and (c), whether or not a declaration under

section 25 of that Act is in force in respect of the person.

substantial adverse effect means an effect that is adverse and not

insubstantial, insignificant or trivial.

terrorism-related proceeding means:

(a) a criminal proceeding for a designated offence; or

(b) a proceeding under the Proceeds of Crime Act 2002 relating

to a designated offence; or

torture has the meaning given by subsection 27D(3).

122 After subsection 20(1)

Insert:

(1A) However, this Part does not apply to a terrorism-related

proceeding. This does not prevent testimony or an exhibit from

being foreign material for the purposes of Part 3A.

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Note:

Part 3A deals with use of foreign material in terrorism-related

proceedings.

123 Subsection 25(1) (note)

Repeal the note.

124 Section 25A

Repeal the section.

125 After Part 3

Insert:

Part 3A--Use of foreign material and foreign

government material in terrorism-related

proceedings

27A Foreign material may be adduced as evidence

(1) Foreign material may be adduced in a terrorism-related proceeding.

Note 1:

The court has a discretion to direct that foreign material not be

adduced if it would have a substantial adverse effect on the right of a

party to the proceeding to receive a fair hearing (see section 27C).

Note 2:

Section 27D deals with admissibility of foreign material adduced.

(2) However, foreign material is not to be adduced as evidence if it

appears to the court's satisfaction at the hearing of the proceeding

that the person who gave the testimony concerned is in Australia

and is able to attend the hearing.

27B Foreign government material may be adduced as evidence

Adducing foreign government material

(1) Foreign government material may be adduced in a

terrorism-related proceeding if the material is:

(a) annexed to a written statement by a senior AFP member that:

(i) is verified on oath or affirmation by the member; and

(ii) meets the requirements in subsection (2); and

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(b) accompanied by a certificate of the Attorney-General given

under subsection (3).

Note 1:

The court has a discretion to direct that foreign government material

not be adduced if it would have a substantial adverse effect on the

right of a party to the proceeding to receive a fair hearing (see

section 27C).

Note 2:

Section 27D deals with admissibility of foreign government material

adduced.

Content of statement by senior AFP member

(2) A statement by a senior AFP member for the purposes of

paragraph (1)(a) must:

(a) relate only to foreign government material annexed to the

statement; and

(b) state what the material is; and

(i) how the material, and any information contained in the

material, was obtained by the first foreign authority to

obtain or produce the material or information; and

(ii) each step in the process by which the material or

information came from that foreign authority into the

possession of the Australian Federal Police.

Attorney-General's certificate

(3) The Attorney-General may certify, in a form prescribed under

subsection (4), that he or she is satisfied that it was not practicable

to obtain the foreign government material or the information in the

foreign government material as foreign material.

(4) The Attorney-General may by legislative instrument prescribe a

form for a certificate to be given under subsection (3).

(5) A certificate given under subsection (3) is not a legislative

instrument.

27C Discretion to prevent material being adduced

(1) This section applies in relation to a terrorism-related proceeding

described in an item of the following table if a person described in

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that item seeks to adduce foreign material or foreign government

material in the proceeding.

Persons seeking to adduce material in proceedings

Item

Proceeding

Person seeking to adduce material

Criminal proceeding for a

designated offence

Prosecutor

Proceeding under the Proceeds

of Crime Act 2002 relating to a

designated offence

The responsible authority under that Act

in relation to the proceeding

Proceeding under Division 104

of the Criminal Code

A member of the Australian Federal

Police or a special member (within the

meaning of the Australian Federal

Police Act 1979)

(2) The court may direct that the material not be adduced as evidence

in the proceeding if the court is satisfied that adducing the material

would have a substantial adverse effect on the right of another

party to the proceeding to receive a fair hearing.

27D Admissibility of material adduced

(1) The following are admissible in a terrorism-related proceeding,

subject to subsection (2) but despite any other Australian law about

evidence:

(a) foreign material adduced under subsection 27A(1) in the

proceeding;

(b) foreign government material adduced under

subsection 27B(1) in the proceeding;

annexed as described in paragraph 27B(1)(a);

(d) the certificate that accompanied the foreign government

material as described in paragraph 27B(1)(b).

Exception to admissibility

(2) Foreign material or foreign government material is not admissible

if the court is satisfied that the material, or information contained

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in the material, was obtained directly as a result of torture or duress

by a person:

(a) in the capacity of a public official; or

(b) acting in an official capacity; or

of a public official or other person acting in an official

capacity.

(3) In subsection (2):

duress means a threat that:

(a) is made explicitly or implicitly to a person; and

(b) is a threat to imminently cause death or serious injury of the

person or a member of the person's family, unless material or

information is provided; and

providing the material or information.

torture means an act or omission by which severe pain or

suffering, whether physical or mental, is intentionally inflicted on a

person:

(a) for the purpose of obtaining from the person or from a third

person information or a confession; or

(b) for the purpose of punishing the person for an act that the

person or a third person has committed or is suspected of

having committed; or

third person; or

(d) for a purpose related to a purpose mentioned in paragraph (a),

(b) or (c); or

(e) for any reason based on discrimination that is inconsistent

with the Articles of the International Covenant on Civil and

Political Rights done at New York on 16 December 1966;

but does not include an act or omission arising only from, inherent

in or incidental to lawful sanctions that are not inconsistent with

the Articles of the Covenant.

Note:

The International Covenant on Civil and Political Rights is in

Australian Treaty Series 1980 No. 23 ([1980] ATS 23) and could in

2014 be viewed in the Australian Treaties Library on the AustLII

website (http://www.austlii.edu.au).

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(4) If foreign government material is not admissible, neither of the

following is admissible, so far as it relates to the inadmissible

foreign government material:

(a) the statement described in paragraph (1)(c);

(b) the certificate described in paragraph (1)(d).

27E Operation of other laws

This Part does not limit the ways in which a matter may be proved,

or evidence may be adduced, under this Act (other than this Part)

or any other Australian law.

126 Application of amendments

(1)

The amendments of the Foreign Evidence Act 1994 made by this

Schedule apply in relation to adducing evidence in proceedings

instituted on or after the commencement of the amendments, whether

the evidence was obtained before, on or after that commencement.

(2)

However, the repeal of paragraph (j) of the definition of designated

offence in subsection 3(1) of the Foreign Evidence Act 1994 by this

Schedule does not prevent an offence against the Crimes (Foreign

Incursions and Recruitment) Act 1978 from being a designated offence

for the purposes of proceedings instituted on or after that repeal.

Foreign Passports (Law Enforcement and Security) Act 2005

127 Subsection 5(1)

Omit "(1)".

128 Subsection 5(1)

Insert:

ASIO means the Australian Security Intelligence Organisation.

129 At the end of Division 1 of Part 2

Add:

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15A Request for 14-day surrender relating to security risk

(1) ASIO may request the Minister to make an order under

section 16A in relation to a person's foreign travel documents if

ASIO suspects on reasonable grounds that:

(a) the person may leave Australia to engage in conduct that

might prejudice the security of Australia or a foreign country;

and

(b) the person should be required to surrender the person's

foreign travel documents in order to prevent the person from

engaging in the conduct.

(2) If the Minister has made an order under section 16A in relation to a

person's foreign travel documents, ASIO must not make another

request under subsection (1) of this section relating to the person

unless the grounds for ASIO's suspicion mentioned in that

subsection include information ASIO obtained more than 14 days

after the Minister made the order.

130 Section 16 (heading)

Repeal the heading, substitute:

16 Demand for surrender of foreign travel document ordered by

Minister on request under section 13, 14 or 15

131 After section 16

Insert:

16A Demand for 14-day surrender of foreign travel document

ordered by Minister on request under section 15A

(1) If ASIO makes a request under section 15A in relation to a person,

the Minister may order the surrender of the person's foreign travel

documents.

(2) If the Minister has made an order under subsection (1), an

enforcement officer may demand that the person surrender to the

officer the person's foreign travel documents.

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(3) If the person does not immediately surrender the person's foreign

travel documents, the officer may:

(a) seize the person's foreign travel documents; and

(b) seize any foreign travel document of the person that is not in

the possession or control of any person.

(4) Subsection (3) does not authorise an enforcement officer to enter

premises that the officer would not otherwise be authorised to

enter.

(5) A person commits an offence if:

(a) an enforcement officer demands under subsection (2) that the

person surrender the person's foreign travel documents; and

(b) the officer informs the person that the Minister has ordered

the surrender of the person's foreign travel documents and

that the officer is authorised to make the demand; and

comply with the demand; and

(d) the person has possession or control of one or more of the

person's foreign travel documents; and

(e) the person fails to surrender those documents to the officer

immediately.

Penalty: Imprisonment for 6 months or 10 penalty units, or both.

(6) A foreign travel document obtained by an enforcement officer

under this section must be returned, to the person to whom it was

issued, 14 days after the Minister made the order under

subsection (1) relating to the document.

(7) However, subsection (6) does not apply if, within the 14 days

described in that subsection, the Minister makes an order under

subsection 16(1). In that case, subsections 16(6) and (7) apply in

relation to the foreign travel document as if it had been obtained by

an enforcement officer under section 16.

Intelligence Services Act 2001

132 Paragraph 29(1)(ba)

Repeal the paragraph.

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133 Paragraph 29(1)(bb)

Omit "2016", substitute "2026".

National Health Security Act 2007

134 Paragraph 89(1)(c)

After "5.3", insert "or 5.5".

135 Paragraph 92(c)

After "5.3", insert "or 5.5".

Proceeds of Crime Act 2002

136 Section 338 (definition of terrorism offence)

Repeal the definition, substitute:

terrorism offence has the same meaning as in the Crimes Act 1914.

Sea Installations Act 1987

137 Schedule

Omit "Crimes (Foreign Incursions and Recruitment) Act 1978".

Telecommunications (Interception and Access) Act 1979

138 After subparagraph 5D(1)(e)(i)

Insert:

(ia) Subdivision B of Division 80 of the Criminal Code; or

(ib) section 80.2C of the Criminal Code; or

139 At the end of paragraph 5D(1)(e)

Add:

(v) section 104.27 of the Criminal Code; or

(vi) Division 119 of the Criminal Code; or

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Terrorism Insurance Act 2003

140 Section 3 (definition of terrorist act)

Repeal the definition, substitute:

terrorist act has the meaning given by section 100.1 of the

Criminal Code.

141 Section 5

Repeal the section.

142 Paragraph 8(2)(b)

Omit "section 5", substitute "section 100.1 of the Criminal Code".

143 Application of amendments

The amendments of the Terrorism Insurance Act 2003 made by this

Schedule apply in relation to any terrorist act (whether occurring before,

on or after the commencement of this item).

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Part 2

--Repeals

Crimes (Foreign Incursions and Recruitment) Act 1978

144 The whole of the Act

Repeal the Act.

145 Transitional provision

Despite the repeal of section 11 of the Crimes (Foreign Incursions and

Recruitment) Act 1978, that section continues to apply after this item

commences in relation to any certificate that is in force under that

section immediately before that repeal.

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Schedule 2

--Stopping welfare payments

Part 1

--Main amendments

A New Tax System (Family Assistance) Act 1999

1 Subsection 3(1)

Insert:

Foreign Affairs Minister means the Minister administering the

Australian Passports Act 2005.

Immigration Minister means the Minister administering the

Migration Act 1958.

security notice means a notice under section 57GJ.

2 At the end of Part 3

Add:

Division 7--Loss of family assistance for individuals on

security grounds

57GH Simplified outline of this Division

Individuals who might prejudice the security of Australia or a

foreign country may lose family assistance.

57GI Loss of family assistance for individuals on security grounds

Security notice for recipient of family assistance

(1) If a security notice is given to the Minister in relation to an

individual, then while the notice is in force:

(a) no family assistance is to be paid to the individual; and

(b) the individual is not eligible for family assistance.

Note 1:

A security notice is a notice under section 57GJ.

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Note 2:

This Division does not apply in relation to child care benefit or child

care rebate: see section 57GQ.

(2) If a security notice is given to the Minister in relation to an

individual, then any determination that the individual is entitled to

be paid family assistance, that is in force immediately before the

day the notice comes into force, ceases to be in force on that day.

(3) If a security notice given to the Minister in relation to an individual

ceases to be in force, then the individual is not eligible for family

assistance for any day while the notice was in force.

(4) However, if:

(a) a security notice given to the Minister in relation to an

individual recommends that payments of family assistance of

the individual be paid to a payment nominee of the individual

under Part 8B of the Family Assistance Administration Act;

and

(b) apart from subsections (1) to (3), the individual would be

eligible for the whole or a part of that family assistance;

then that whole or part may be paid to a payment nominee of the

individual under that Part.

(5) For the purposes of subsection (4), paragraph 219TD(2)(b) of the

Family Assistance Administration Act does not apply.

(6) For the purposes of subsection (4), section 219TN of the Family

Assistance Administration Act does not apply. Instead, any amount

paid to a payment nominee of the individual is to be applied by the

nominee in accordance with a written direction given by the

Secretary under this subsection.

Security notice for individual in respect of whom family assistance

payable

(7) If:

(a) a security notice is given to the Minister in relation to an

individual; and

(b) the individual is aged 19 or less on the day the notice is

given;

then, for any day while the notice is or was in force, the individual

cannot be an FTB child of another individual, cannot be a regular

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care child of another individual and cannot be a client of an

approved care organisation.

Relationship with other provisions

(8) Subsections (1) to (7) have effect despite any other provision of the

family assistance law.

Notification to individual

(9) If a determination in relation to an individual ceases to be in force

because of subsection (2), the Secretary must cause reasonable

steps to be taken to notify the individual of the cessation.

57GJ Security notice from Attorney-General

(1) The Attorney-General may give the Minister a written notice

requiring that this Division apply in relation to a specified

individual if:

(a) the Foreign Affairs Minister gives the Attorney-General a

notice under section 57GK in relation to the individual; or

(b) the Immigration Minister gives the Attorney-General a notice

under section 57GL in relation to the individual.

(2) A notice under this section may recommend that payments of

family assistance of the individual, to the extent set out in the

notice, be paid to a payment nominee of the individual under

Part 8B of the Family Assistance Administration Act.

57GK Notice from Foreign Affairs Minister

If:

(a) either:

(i) under subsection 14(2) of the Australian Passports Act

2005, the Foreign Affairs Minister refuses to issue an

individual an Australian passport; or

(ii) under section 22 of that Act, the Foreign Affairs

Minister cancels an individual's Australian passport;

and

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(b) the refusal or cancellation was because of a

refusal/cancellation request made in relation to the individual

under subsection 14(1) of that Act; and

mentioned in subparagraph 14(1)(a)(i) of that Act;

the Foreign Affairs Minister may give the Attorney-General a

written notice setting out those matters.

57GL Notice from Immigration Minister

If:

(a) the Immigration Minister cancels an individual's visa under

section 116 or 128 of the Migration Act 1958 because of an

assessment by the Australian Security Intelligence

Organisation that the individual is directly or indirectly a risk

to security (within the meaning of section 4 of the Australian

Security Intelligence Organisation Act 1979); or

(b) the Immigration Minister cancels an individual's visa under

section 134B of the Migration Act 1958 (emergency

cancellation on security grounds) and decides not to revoke

that cancellation under subsection 134C(3) of that Act; or

section 501 of the Migration Act 1958 and there is an

assessment by the Australian Security Intelligence

Organisation that the individual is directly or indirectly a risk

to security (within the meaning of section 4 of the Australian

Security Intelligence Organisation Act 1979);

the Immigration Minister may give the Attorney-General a written

notice setting out those matters.

57GM Copy of security notice to be given to Secretaries

The Minister must give a copy of a security notice to:

(a) the Secretary of the Department; and

(b) the Secretary of the Human Services Department.

57GN Period security notice is in force

A security notice comes into force on the day it is given to the

Minister, and remains in force until it is revoked.

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57GO Revoking a security notice

(1) The Attorney-General may, by written notice given to the Minister,

revoke a security notice.

(2) The revocation takes effect on the day it is made.

(3) The Minister must give a copy of a notice under subsection (1) to:

(a) the Secretary of the Department; and

(b) the Secretary of the Human Services Department.

(4) If:

(a) a determination in relation to an individual ceases to be in

force because of subsection 57GI(2); and

(b) the Attorney-General revokes the security notice concerned;

the Secretary of the Department must cause reasonable steps to be

taken to notify the individual of the revocation.

57GP Notices may contain personal information

A notice under this Division in relation to an individual may

contain personal information about the individual.

57GQ This Division does not apply to child care benefit or child care

rebate

This Division does not apply in relation to child care benefit or

child care rebate.

57GR Certain decisions not decisions of officers

For the purposes of Part 5 of the Family Assistance Administration

Act, the following decisions are taken not to be decisions of an

officer under the family assistance law:

(a) any decision under this Division;

(b) any decision under Part 8B of that Act to pay, or not to pay,

an amount of family assistance as mentioned in

subsection 57GI(4) of this Act;

decision mentioned in paragraph (b).

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57GS Instruments not legislative instruments

The following are not legislative instruments:

(a) a notice under this Division;

(b) a direction under subsection 57GI(6).

Paid Parental Leave Act 2010

3 Section 6

Insert:

Foreign Affairs Minister means the Minister administering the

Australian Passports Act 2005.

Immigration Minister means the Minister administering the

Migration Act 1958.

security notice means a notice under section 278C.

4 At the end of Part 6-1

Add:

Division 5--Loss of parental leave pay or dad and partner

pay for persons on security grounds

278A Simplified outline of this Division

Persons who might prejudice the security of Australia or a foreign

country may lose parental leave pay or dad and partner pay.

278B Loss of parental leave pay or dad and partner pay for persons

on security grounds

(1) If a security notice is given to the Minister in relation to a person,

then while the notice is in force:

(a) no parental leave pay or dad and partner pay is to be paid to

the person; and

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(b) the person is not eligible for parental leave pay or dad and

partner pay; and

the person.

Note:

A security notice is a notice under section 278C.

(2) If:

(a) a security notice is given to the Minister in relation to a

person; and

(b) a payability determination that parental leave pay or dad and

partner pay is payable to the person is in force at the end of

the day (the relevant day) before the day the notice is given;

and

DAPP period, that is specified in that determination;

then that determination is taken to be varied so that the person's

PPL period or DAPP period, as the case requires, ends at the end of

the relevant day.

(3) If a security notice given to the Minister in relation to a person

ceases to be in force, then for any day while the notice was in

force:

(a) the person is not eligible for parental leave pay or dad and

partner pay; and

(b) parental leave pay or dad and partner pay is not payable to

the person.

(4) Subsections (1) to (3) have effect despite any other provision of

this Act.

(5) If a payability determination for a person is varied by

subsection (2), the Secretary must cause reasonable steps to be

taken to notify the person of the variation.

278C Security notice from Attorney-General

The Attorney-General may give the Minister a written notice

requiring that this Division apply in relation to a specified person

if:

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(a) the Foreign Affairs Minister gives the Attorney-General a

notice under section 278D in relation to the person; or

(b) the Immigration Minister gives the Attorney-General a notice

under section 278E in relation to the person.

278D Notice from Foreign Affairs Minister

If:

(a) either:

(i) under subsection 14(2) of the Australian Passports Act

2005, the Foreign Affairs Minister refuses to issue a

person an Australian passport; or

(ii) under section 22 of that Act, the Foreign Affairs

Minister cancels a person's Australian passport; and

(b) the refusal or cancellation was because of a

refusal/cancellation request made in relation to the person

under subsection 14(1) of that Act; and

mentioned in subparagraph 14(1)(a)(i) of that Act;

the Foreign Affairs Minister may give the Attorney-General a

written notice setting out those matters.

278E Notice from Immigration Minister

If:

(a) the Immigration Minister cancels a person's visa under

section 116 or 128 of the Migration Act 1958 because of an

assessment by the Australian Security Intelligence

Organisation that the person is directly or indirectly a risk to

security (within the meaning of section 4 of the Australian

Security Intelligence Organisation Act 1979); or

(b) the Immigration Minister cancels a person's visa under

section 134B of the Migration Act 1958 (emergency

cancellation on security grounds) and decides not to revoke

that cancellation under subsection 134C(3) of that Act; or

section 501 of the Migration Act 1958 and there is an

assessment by the Australian Security Intelligence

Organisation that the person is directly or indirectly a risk to

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security (within the meaning of section 4 of the Australian

Security Intelligence Organisation Act 1979);

the Immigration Minister may give the Attorney-General a written

notice setting out those matters.

278F Copy of security notice to be given to Secretaries

The Minister must give a copy of a security notice to:

(a) the Secretary of the Department; and

(b) the Secretary of the Human Services Department.

278G Period security notice is in force

A security notice comes into force on the day it is given to the

Minister, and remains in force until it is revoked.

278H Revoking a security notice

(1) The Attorney-General may, by written notice given to the Minister,

revoke a security notice.

(2) The revocation takes effect on the day it is made.

(3) The Minister must give a copy of a notice under subsection (1) to:

(a) the Secretary of the Department; and

(b) the Secretary of the Human Services Department.

(4) If:

(a) a payability determination for a person is varied by

subsection 278B(2); and

(b) the Attorney-General revokes the security notice concerned;

the Secretary of the Department must cause reasonable steps to be

taken to notify the person of the revocation.

278J Notices may contain personal information

A notice under this Division in relation to a person may contain

personal information (within the meaning of the Privacy Act 1988)

about the person.

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278K Decisions under Division not decisions of officers

For the purposes of Chapter 5, a decision under this Division is

taken not to be a decision of an officer under this Act.

278L Notices not legislative instruments

A notice under this Division is not a legislative instrument.

Social Security Act 1991

5 Subsection 23(1)

Insert:

Foreign Affairs Minister means the Minister administering the

Australian Passports Act 2005.

Immigration Minister means the Minister administering the

Migration Act 1958.

security notice means a notice under section 38N.

6 After Part 1.3A of Chapter 1

Insert:

Part 1.3B--Loss of social security payments and

concessions for persons on security grounds

38L Simplified outline of this Part

Persons who might prejudice the security of Australia or a foreign

country may lose social security payments or concession cards.

38M Loss of social security payments and concessions for persons on

security grounds

(1) If a security notice is given to the Minister in relation to a person,

then while the notice is in force:

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(a) no social security payment is to be paid to the person; and

(b) the person is not qualified for a social security payment; and

(d) the person is not qualified for a concession card.

Note:

A security notice is a notice under section 38N.

(2) If a security notice is given to the Minister in relation to a person,

then any social security payment of the person is cancelled on the

day the notice comes into force.

(3) If a security notice is given to the Minister in relation to a person,

then any concession card the person holds is cancelled on the day

the notice comes into force.

(4) If a security notice given to the Minister in relation to a person

ceases to be in force, then for any day while the notice was in

force:

(a) the person is not qualified for a social security payment; and

(b) a social security payment is not payable to the person; and

(5) Subsections (1) to (4) have effect despite any other provision of the

social security law.

(6) If a person's social security payment is cancelled by subsection (2),

or a person's concession card is cancelled by subsection (3), the

Secretary must cause reasonable steps to be taken to notify the

person of the cancellation.

38N Security notice from Attorney-General

The Attorney-General may give the Minister a written notice

requiring that this Part apply in relation to a specified person if:

(a) the Foreign Affairs Minister gives the Attorney-General a

notice under section 38P in relation to the person; or

(b) the Immigration Minister gives the Attorney-General a notice

under section 38Q in relation to the person.

38P Notice from Foreign Affairs Minister

If:

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(a) either:

(i) under subsection 14(2) of the Australian Passports Act

2005, the Foreign Affairs Minister refuses to issue a

person an Australian passport; or

(ii) under section 22 of that Act, the Foreign Affairs

Minister cancels a person's Australian passport; and

(b) the refusal or cancellation was because of a

refusal/cancellation request made in relation to the person

under subsection 14(1) of that Act; and

mentioned in subparagraph 14(1)(a)(i) of that Act;

the Foreign Affairs Minister may give the Attorney-General a

written notice setting out those matters.

38Q Notice from Immigration Minister

If:

(a) the Immigration Minister cancels a person's visa under

section 116 or 128 of the Migration Act 1958 because of an

assessment by the Australian Security Intelligence

Organisation that the person is directly or indirectly a risk to

security (within the meaning of section 4 of the Australian

Security Intelligence Organisation Act 1979); or

(b) the Immigration Minister cancels a person's visa under

section 134B of the Migration Act 1958 (emergency

cancellation on security grounds) and decides not to revoke

that cancellation under subsection 134C(3) of that Act; or

section 501 of the Migration Act 1958 and there is an

assessment by the Australian Security Intelligence

Organisation that the person is directly or indirectly a risk to

security (within the meaning of section 4 of the Australian

Security Intelligence Organisation Act 1979);

the Immigration Minister may give the Attorney-General a written

notice setting out those matters.

38R Copy of security notice to be given to Secretaries

The Minister must give a copy of a security notice to:

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(a) the Secretary of the Department; and

(b) the Secretary of the Human Services Department.

38S Period security notice is in force

A security notice comes into force on the day it is given to the

Minister, and remains in force until it is revoked.

38T Revoking a security notice

(1) The Attorney-General may, by written notice given to the Minister,

revoke a security notice.

(2) The revocation takes effect on the day it is made.

(3) The Minister must give a copy of a notice under subsection (1) to:

(a) the Secretary of the Department; and

(b) the Secretary of the Human Services Department.

(4) If:

(a) a person's social security payment is cancelled by

subsection 38M(2) or a person's concession card is cancelled

by subsection 38M(3); and

(b) the Attorney-General revokes the security notice concerned;

the Secretary of the Department must cause reasonable steps to be

taken to notify the person of the revocation.

38U Notices may contain personal information

A notice under this Part in relation to a person may contain

personal information (within the meaning of the Privacy Act 1988)

about the person.

38V Decisions under Part not decisions of officers

For the purposes of Part 4 of the Administration Act, a decision

under this Part is taken not to be a decision of an officer under the

social security law.

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38W Notices not legislative instruments

A notice under this Part is not a legislative instrument.

Social Security (Administration) Act 1999

7 Before paragraph 123(1)(c)

Insert:

(ba) the payment is cancelled by section 38M of the 1991 Act; or

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Part 2

--Other amendments

Administrative Decisions (Judicial Review) Act 1977

8 After paragraph (c) of Schedule 2

Insert:

(ca) decisions under Part 1.3B of the Social Security Act 1991,

decisions under Division 7 of Part 3 of the A New Tax System

(Family Assistance) Act 1999 or decisions under Division 5

of Part 6-1 of the Paid Parental Leave Act 2010;

(cb) decisions under Part 8B of the A New Tax System (Family

Assistance) (Administration) Act 1999 to pay, or not to pay,

an amount of family assistance as mentioned in

subsection 57GI(4) of the A New Tax System (Family

Assistance) Act 1999;

(cc) decisions under Part 8B of the A New Tax System (Family

Assistance) (Administration) Act 1999 that are related to

decisions mentioned in paragraph (cb);

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Part 3

--Application provisions

9 Application provisions

Affected payments and concessions

(1)

Section 57GI of the A New Tax System (Family Assistance) Act 1999, as

inserted by this Act, applies in relation to family assistance of an

individual, whether the individual became eligible for that assistance

before, on or after the commencement of this item.

(2)

Section 278B of the Paid Parental Leave Act 2010, as inserted by this

Act, applies in relation to parental leave pay or dad and partner pay of a

person, whether the person became eligible for that pay before, on or

after the commencement of this item.

(3)

Section 38M of the Social Security Act 1991, as inserted by this Act,

applies in relation to the following:

(a) a social security payment of a person, whether the person

qualified for that payment before, on or after the

commencement of this item;

(b) a concession card of a person, whether that card was issued

before, on or after the commencement of this item.

Ministerial notices

(4)

Paragraph 57GK(a) of the A New Tax System (Family Assistance) Act

1999, paragraph 278D(a) of the Paid Parental Leave Act 2010 and

paragraph 38P(a) of the Social Security Act 1991, as inserted by this

Act, apply in relation to the refusal to issue, or the cancellation of, a

passport before, on or after the commencement of this item.

(5)

Paragraphs 57GL(a) and (c) of the A New Tax System (Family

Assistance) Act 1999, paragraphs 278E(a) and (c) of the Paid Parental

Leave Act 2010 and paragraphs 38Q(a) and (c) of the Social Security

Act 1991, as inserted by this Act, apply in relation to the cancellation of

a visa, or an assessment made, before, on or after the commencement of

this item.

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Schedule 3

--Customs' detention powers

Customs Act 1901

1 Section 219ZJA

Insert:

national security has the same meaning as in the National Security

Information (Criminal and Civil Proceedings) Act 2004.

2 Section 219ZJA (definition of serious Commonwealth

offence)

Repeal the definition, substitute:

serious Commonwealth offence means an offence against a law of

the Commonwealth that is punishable on conviction by

imprisonment for 12 months or more.

3 Paragraph 219ZJB(1)(b)

Omit "or is committing,", substitute "is committing or intends to

commit".

4 Subsection 219ZJB(3)

Omit "delivered, as soon as practicable, into the custody of", substitute

"made available, as soon as practicable, to".

5 Subsection 219ZJB(4)

Omit "or was committing,", substitute "was committing or was

intending to commit".

6 Subsection 219ZJB(5)

Omit "45 minutes", substitute "4 hours".

7 Paragraphs 219ZJB(7)(a) and 219ZJC(6)(a)

After "safeguard", insert "national security, the security of a foreign

country or".

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8 At the end of Subdivision B of Division 1BA of Part XII

Add:

219ZJCA Detention of person for national security or security of a

foreign country

(1) An officer may detain a person if:

(a) the person is in a designated place; and

(b) the officer is satisfied on reasonable grounds that the person

is, or is likely to be, involved in an activity that is a threat to

national security or the security of a foreign country.

(2) An officer who is detaining a person under this section must

(subject to subsection (3)) ensure that the person is made available,

as soon as practicable, to a police officer in person to be dealt with

according to law.

(3) An officer who is detaining a person under this section must

release the person from that detention immediately if:

(a) the officer ceases to be satisfied on reasonable grounds that

the person is, or is likely to be, involved in an activity that is

a threat to national security or the security of a foreign

country; or

(b) the person is made available to a police officer under

subsection (2); or

police officer belongs has no interest in the person.

(4) Subject to subsection (6), if a person is detained under this section

for more than 4 hours, an officer who is detaining the person under

this section must inform the person of the right of the person to

have a family member or another person notified of the person's

detention.

(5) Where a person detained under this section wishes to have a family

member or another person notified of the person's detention, the

officer must take all reasonable steps to notify the family member

or the other person.

(6) An officer who is detaining the person under this section may

refuse to notify a family member or another person of the person's

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detention if the officer believes on reasonable grounds that such

notification should not be made in order to:

(a) safeguard national security, the security of a foreign country

or the processes of law enforcement; or

(b) protect the life and safety of any person.

Note:

In relation to references in this section to family member, see also

section 4AAA.

9 At the end of subsection 219ZJD(1)

Add:

; or (e) in the case of a person detained under section 219ZJCA--

preventing the concealment, loss or destruction of material of

interest for national security or the security of a foreign

country.

10 At the end of paragraph 219ZJD(3)(b)

Add:

; or (iv) that is of interest for national security or the security of

a foreign country.

11 Subsection 219ZJD(4)

Repeal the subsection, substitute:

(4) An officer who seizes a weapon or other thing under subsection (3)

must ensure that it is made available to:

(a) the police officer to whom the person is made available under

subsection 219ZJB(3) or 219ZJCA(2); or

(b) the police officer into whose custody the person is delivered

under subsection 219ZJC(3).

12 Subsection 219ZJF(1)

Omit "this Division", substitute "section 219ZJB or 219ZJC".

13 Subparagraph 219ZJJ(1)(b)(iv)

After "detention", insert ", unless the minor is detained under

section 219ZJCA".

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Schedule 4

--Cancelling visas on security

grounds

Part 1

--Amendment of the Migration Act 1958

Division 1

--Amendments

1 Subsection 5(1)

Insert:

ASIO means the Australian Security Intelligence Organisation.

ASIO Act means the Australian Security Intelligence Organisation

Act 1979.

assessment, in relation to ASIO, has the same meaning as in

subsection 35(1) of the ASIO Act.

2 Subsection 33(10)

Before "and H", insert ", FB".

3 Before paragraph 118(d)

Insert:

(cc) section 134B (emergency cancellation on security grounds);

4 Before Subdivision G of Division 3 of Part 2

Insert:

Subdivision FB--Emergency cancellation on security grounds

134A Natural justice

The rules of natural justice do not apply to a decision made under

this Subdivision.

134B Emergency cancellation on security grounds

The Minister must cancel a visa held by a person if:

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(a) there is an assessment made by ASIO for the purposes of this

section; and

(b) the assessment contains advice that ASIO suspects that the

person might be, directly or indirectly, a risk to security

(within the meaning of section 4 of the ASIO Act); and

by the person be cancelled under this section; and

(d) the person is outside Australia.

134C Decision about revocation of emergency cancellation

Application of section

(1) This section applies to a visa that is cancelled under section 134B.

First ground to revoke cancellation

(2) The Minister must revoke the cancellation of the visa as soon as

reasonably practicable after the end of the period referred to in

subsection (5).

(3) However, the Minister must not revoke the cancellation under

subsection (2) if:

(a) there is an assessment made by ASIO for the purposes of this

section before the end of the period referred to in

subsection (5); and

(b) the assessment contains advice that the former holder of the

visa is, directly or indirectly, a risk to security (within the

meaning of section 4 of the ASIO Act); and

cancellation not be revoked under subsection (2).

Second ground to revoke cancellation

(4) If:

(a) there is an assessment made by ASIO for the purposes of this

section before the end of the period referred to in

subsection (5); and

(b) the assessment contains a recommendation that the

cancellation of the visa be revoked under this subsection;

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then the Minister must revoke the cancellation as soon as

reasonably practicable after the assessment is made.

Period

(5) For the purposes of subsections (2), (3) and (4), the period is the

period that:

(a) starts at the beginning of the day (the cancellation day) the

visa is cancelled; and

(b) ends at the end of the 28th day after the cancellation day.

134D Effect of revocation of cancellation

(1) If the cancellation of a visa is revoked under section 134C, then,

without limiting its operation before cancellation, it has effect as if

it were granted on the revocation.

(2) However, the Minister may vary:

(a) the time the visa is to be in effect; or

(b) any period in which, or date until which, the visa permits its

holder to travel to, enter and remain in Australia, or to remain

in Australia.

134E Notice of cancellation

(1) If:

(a) the Minister decides under section 134B to cancel a visa; and

(b) the Minister decides under subsection 134C(3) not to revoke

the cancellation;

then the Minister must give the former holder of the visa notice of

the cancellation.

(2) The notice must be given:

(a) if the assessment made by ASIO for the purposes of

section 134C contains an advice that it is essential to the

security of the nation that a notice is not given to the person

under this section--as soon as reasonably practicable after

ASIO advises the Minister, in writing, that it is no longer

essential to the security of the nation for the notice not to be

given; and

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(b) otherwise--as soon as reasonably practicable after the

Minister decides under subsection 134C(3) not to revoke the

cancellation.

(3) The notice must:

(a) state that the visa was cancelled under section 134B; and

(b) be given to the person in the prescribed way.

(4) Failure to give the notice does not affect the validity of either:

(a) the decision under section 134B to cancel the visa; or

(b) the decision under subsection 134C(3) not to revoke the

cancellation.

134F Effect of cancellation on other visas

(1) This section applies if:

(a) a visa held by a person (the relevant person) is cancelled

under section 134B; and

(b) the Minister decides under subsection 134C(3) not to revoke

the cancellation; and

section 134E about the cancellation.

(2) If another person holds a visa only because the relevant person

held a visa, then the Minister may, without notice to the other

person, cancel the other person's visa.

Division 2

--Application of amendments made by Part 1

5 Application of amendments made by Part 1

The amendments made by Part 1 of this Schedule apply in relation to

visas granted before, on or after that commencement.

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Part 2

--Amendment of the Australian Security

Intelligence Organisation Act 1979

6 Section 36

Before "This Part", insert "(1)".

7 At the end of section 36

Add:

(2) Despite paragraph (1)(b), this Part applies to a security assessment

in respect of a person if:

(a) the person was the holder of a valid permanent visa; and

(b) the visa was cancelled under section 134B of the Migration

Act 1958; and

section 134C of that Act in relation to that cancellation.

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Schedule 5

--Identifying persons in

immigration clearance

Part 1

--Amendment of the Migration Act 1958

1 Paragraph 5A(3)(g)

Repeal the paragraph, substitute:

(g) to enhance the Department's ability to identify non-citizens

who have a criminal history or who are of character concern;

and

(ga) to assist in identifying persons who may be a security

concern to Australia or a foreign country; and

2 Part 2 (heading)

Repeal the heading, substitute:

Part 2--Arrival, presence and departure of persons

3 Paragraph 166(1)(c)

Repeal the paragraph, substitute:

before an event referred to in subparagraph 172(1)(a)(iii) or

(b)(iii) or paragraph 172(1)(c) occurs, to provide one or more

personal identifiers referred to in subsection (5) to a

clearance authority; and

(d) if under paragraph (a) the person presents evidence to an

authorised system--provide to the authorised system:

(i) a photograph or other image of the person's face and

shoulders; and

(ii) any other personal identifier referred to in subsection (5)

that is prescribed by the regulations.

4 Subsection 166(2)

Omit "present evidence, or provide information,", substitute "present or

provide evidence, information or personal identifiers".

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5 Subparagraph 166(2)(c)(i)

Omit "neither the system nor a clearance officer requires", substitute "a

clearance officer does not require".

6 Subsection 166(3) (heading)

Repeal the heading, substitute:

Complying with paragraphs (1)(a) and (b)

7 Before subsection 166(5)

Insert:

Personal identifiers provided under paragraph (1)(c) or (d)

8 Subsection 166(5)

Omit "paragraphs (1)(a) and (c), a person may only be required to

present or", substitute "paragraphs (1)(c) and (d), a person may only be

required to".

9 Paragraph 166(5)(c)

After "identifier", insert "of a type".

10 Subsection 166(6)

Repeal the subsection.

11 Subsection 166(7)

Repeal the subsection, substitute:

(7) A person is taken not to have complied with a requirement to

provide a personal identifier under paragraph (1)(c) or (d) unless

the personal identifier is provided by way of one or more

identification tests carried out by an authorised officer or

authorised system.

12 Subsection 166(8)

Omit "non-citizen", substitute "person".

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13 Paragraph 166(8)(a)

After "authorised officer", insert "or authorised system".

14 Paragraphs 170(1)(a) and (b)

Omit "the officer or an authorised system", substitute "a clearance

authority".

15 At the end of subsection 170(1)

Add:

; and (c) to comply with any requirement made by a clearance officer

to provide one or more personal identifiers referred to in

subsection (2A) to a clearance authority; and

(d) if under paragraph (a) the person presents evidence to an

authorised system--to provide to the authorised system:

(i) a photograph or other image of the person's face and

shoulders; and

(ii) any other personal identifier referred to in

subsection (2A) that is prescribed by the regulations.

16 Subsection 170(2)

Repeal the subsection, substitute:

Complying with subsection (1)

(2) A person is to comply with subsection (1) in a prescribed way.

17 Subsection 170(2AA)

Omit "present evidence, or provide information,", substitute "present or

provide evidence, information or personal identifiers".

18 Subparagraph 170(2AA)(c)(i)

Omit "neither the system nor a clearance officer requires the person to

present or provide evidence, information or personal identifiers referred

to in subsection (1) or (2)", substitute "a clearance officer does not

require the person to present or provide evidence, information or

personal identifiers referred to in subsection (1)".

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19 Subsection 170(2A) (heading)

Repeal the heading, substitute:

Personal identifiers provided under paragraph (1)(c) or (d)

20 Subsection 170(2A)

Omit "paragraph (1)(a) and subsection (2), a person may only be

required to present or", substitute "paragraphs (1)(c) and (d), a person

may only be required to".

21 Paragraph 170(2A)(c)

After "identifier", insert "of a type".

22 Subsection 170(3)

Repeal the subsection.

23 Subsection 170(4)

Repeal the subsection, substitute:

(4) A person is taken not to have complied with a requirement to

provide a personal identifier under paragraph (1)(c) or (d) unless

the personal identifier is provided by way of one or more

identification tests carried out by an authorised officer or

authorised system.

24 Subsection 170(5)

Omit "non-citizen", substitute "person".

25 Paragraph 170(5)(a)

After "an authorised officer", insert "or authorised system".

26 Subsection 175(1)

Omit "to leave Australia (whether or not after calling at places in

Australia)", substitute "due to depart from a place in Australia to a place

outside Australia (whether or not after calling at other places in

Australia)".

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27 Paragraphs 175(1)(a) and (b)

Omit "the officer or an authorised system", substitute "a clearance

authority".

28 At the end of subsection 175(1)

Add:

; and (c) comply with any requirement made by a clearance officer to

provide one or more personal identifiers referred to in

subsection (2A) to a clearance authority; and

(d) if under paragraph (a) the person presents evidence to an

authorised system--provide to the authorised system:

(i) a photograph or other image of the person's face and

shoulders; and

(ii) any other personal identifier referred to in

subsection (2A) that is prescribed by the regulations.

29 Subsection 175(2)

Repeal the subsection, substitute:

Complying with subsection (1)

(2) A person is to comply with subsection (1) in a prescribed way.

30 Subsection 175(2AA)

Omit "present evidence, or provide information,", substitute "present or

provide evidence, information or personal identifiers".

31 Subparagraph 175(2AA)(c)(i)

Omit "neither the system nor a clearance officer requires the person to

present or provide evidence, information or personal identifiers referred

to in subsection (1) or (2)", substitute "a clearance officer does not

require the person to present or provide evidence, information or

personal identifiers referred to in subsection (1)".

32 Subsection 175(2A) (heading)

Repeal the heading, substitute:

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Personal identifiers provided under paragraph (1)(c) or (d)

33 Subsection 175(2A)

Omit "paragraph (1)(a) and subsection (2), a person may only be

required to present or", substitute "paragraphs (1)(c) and (d), a person

may only be required to".

34 Paragraph 175(2A)(c)

After "identifier", insert "of a type".

35 Subsection 175(3)

Repeal the subsection.

36 Subsection 175(4)

Repeal the subsection, substitute:

(4) A person is taken not to have complied with a requirement to

provide a personal identifier under paragraph (1)(c) or (d) unless

the personal identifier is provided by way of one or more

identification tests carried out by an authorised officer or

authorised system.

37 Subsection 175(5)

Omit "non-citizen", substitute "person".

38 Paragraph 175(5)(a)

After "an authorised officer", insert "or authorised system".

39 At the end of Division 5 of Part 2

Add:

175B Collection, access and disclosure of information

Collection of information

(1) If a person presents or provides a document to a clearance

authority under this Division, the clearance authority may collect

information (including personal identifiers) in the document.

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Access to, and disclosure of, personal information

(2) The following provisions:

(a) section 336D (which authorises access to identifying

information);

(b) section 336E (other than subsection 336E(1)) and

section 336F (which authorise disclosure of identifying

information);

336F;

apply to personal information (other than personal identifiers)

collected under this Division in the same way as they apply to

identifying information.

Effect on interpretation

(3) This section does not, by implication, affect the interpretation of

any other provision of this Act or an instrument made under this

Act.

40 Section 258

Omit "non-citizens" (wherever occurring), substitute "persons".

41 Section 258A (heading)

Repeal the heading, substitute:

258A When person cannot be required to provide personal identifier

42 Subsection 258B(1)

Omit "carrying out an identification test on a non-citizen", substitute

"an authorised officer carries out an identification test on a person".

43 Paragraphs 258B(1)(a) and (b)

Omit "the non-citizen" (wherever occurring), substitute "the person".

44 Subsections 258B(2) and (3)

Omit "non-citizen" (wherever occurring), substitute "person".

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45 Section 258C (heading)

Repeal the heading, substitute:

258C Information to be provided when identification tests not

carried out

46 Section 258C

Omit "non-citizen" (wherever occurring), substitute "person".

47 Subsection 258D(1)

Omit "the authorised officer is to carry out identification tests on the

non-citizen", substitute "an identification test is to be carried out on a

person".

48 Subsection 258D(2)

Omit "non-citizen", substitute "person".

49 Subsection 258D(2)

Omit "carried out by an authorised officer".

50 Paragraphs 258E(a) and (e)

Omit "non-citizen", substitute "person".

51 Subsection 261AL(1)

Omit "non-citizen", substitute "person".

52 Paragraphs 261AL(1)(a) and (b)

Omit "non-citizen's" (wherever occurring), substitute "person's".

53 Subsection 261AL(5)

Omit "non-citizen", substitute "person".

54 Subsection 261AM(1)

Omit "non-citizen", substitute "person".

55 Paragraphs 261AM(1)(a) and (b)

Omit "non-citizen's" (wherever occurring), substitute "person's".

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56 Subsection 261AM(4)

Omit "non-citizen", substitute "person".

57 Paragraph 336D(2)(g)

Repeal the paragraph, substitute:

(g) the purposes of:

(i) this Act or an instrument made under this Act; or

(ii) the Australian Citizenship Act 2007 or an instrument

made under that Act; or

(iii) the Customs Act 1901 or an instrument made under that

Act; or

(iv) any other law of the Commonwealth prescribed by the

regulations;

58 Subparagraph 336E(2)(a)(iii)

Repeal the subparagraph, substitute:

(iii) identify non-citizens who have a criminal history or

who are of character concern; or

(iiia) identify persons who may be a security concern to

Australia or a foreign country; or

59 After paragraph 336E(2)(b)

Insert:

(ba) is for the purpose of:

(i) this Act or an instrument made under this Act; or

(ii) the Australian Citizenship Act 2007 or an instrument

made under that Act; or

(iii) the Customs Act 1901 or an instrument made under that

Act; or

(iv) any other law of the Commonwealth prescribed by the

regulations; or

60 After paragraph 366E(2)(eb)

Insert:

(ec) is for the purpose of identifying non-citizens who have a

criminal history or who are of character concern; or

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Part 2

--Application of amendments

61 Application of amendments

(1)

The amendment made by item 1 of this Schedule, as it affects

section 336A, 336D or 336F of the Migration Act 1958, applies in

relation to personal identifiers and personal information provided before

or after the commencement of this Schedule.

(2)

The amendment made by item 39 of this Schedule applies in relation to:

(a) documents presented or provided; or

(b) personal information provided;

before or after the commencement of this Schedule.

(3)

The amendments made by items 57 to 60 apply in relation to personal

identifiers and personal information provided before or after the

commencement of this Schedule.

(4)

If:

(a) an instrument was made for the purposes of a provision of the

Migration Act 1958; and

(b) the instrument was in force immediately before the

commencement of this Schedule; and

then the instrument continues in force (and may be dealt with) as if it

were made for the purposes of that provision as amended.

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Schedule 6

--Identifying persons entering or

leaving Australia through advance

passenger processing

Part 1

--Amendment of the Migration Act 1958

Division 1

--Amendments

1 Paragraph 5A(3)(c)

Omit ", including passenger processing at Australia's border".

2 After paragraph 5A(3)(c)

Insert:

(ca) to improve passenger processing at Australia's border; and

3 Paragraph 245I(2)(b)

After "voyage to", insert "or from".

4 Subsections 245J(3) and 245K(2)

After "information", insert "(including personal identifiers)".

5 Section 245L (heading)

Repeal the heading, substitute:

245L Obligation to report on persons arriving in Australia

6 Subsection 245L(1)

Omit "an airport or port", substitute "a place".

7 Paragraphs 245L(2)(a) and (b)

Omit "airport or port", substitute "place in Australia".

8 Subsection 245L(2) (note 1)

Omit "(and the obligation in subsection (6))".

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9 Paragraphs 245L(4)(a) and (b)

Omit "airport" (wherever occurring), substitute "place".

10 Paragraphs 245L(5)(a) and (b)

After "arrival", insert "at the place in Australia".

11 Subsections 245L(6) and (7)

Repeal the subsections.

12 After section 245L

Insert:

245LA Obligation to report on persons departing from Australia

Aircraft and ships to which section applies

(1) This section applies to an aircraft or ship of a kind to which this

Division applies that is due to depart from a place in Australia on a

flight or voyage to a place outside Australia (whether or not after

calling at other places in Australia).

Obligation to report on passengers and crew

(2) The operator of the aircraft or ship must, in accordance with this

section:

(a) report to the Department, using the approved primary

reporting system for passengers, on each passenger who is

on, or is expected to be on, the flight or voyage (including

any part of the flight or voyage); and

(b) report to the Department, using the approved primary

reporting system for crew, on each member of the crew who

is on, or is expected to be on, the flight or voyage (including

any part of the flight or voyage).

Note 1:

This obligation must be complied with even if the information

concerned is personal information.

Note 2:

Section 245N contains an offence for failure to comply with this

subsection.

(3) However, if:

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(a) on the flight or voyage, the aircraft or ship calls at one or

more places in Australia before departing to the place outside

Australia; and

(b) the regulations prescribe that a report under subsection (2)

must only relate to the part of the flight or voyage that is

from the last place in Australia to the place outside Australia;

then the report must be on each passenger or crew member who is

on, or is expected to be on, that part of the flight or voyage.

Information to be reported

(4) A report on a passenger or crew member under subsection (2) must

include the information relating to the passenger or crew member

that is specified, as mentioned in subsection 245J(3), in relation to

the relevant approved primary reporting system.

Deadline for providing a report

(5) A report on a passenger or crew member under subsection (2) must

be provided:

(a) if the regulations prescribe a period or periods before the

aircraft's or ship's departure from a place for the giving of a

report under subsection (2) in relation to the passenger or

crew member--not later than the start of that period or each

of those periods; and

(b) if the regulations prescribe an event or events for the giving

of a report under subsection (2) in relation to the passenger or

crew member--at the time of that event or each of those

events; and

report under subsection (2) in relation to the passenger or

crew member--at that time or each of those times.

(6) To avoid doubt, more than one report may be required to be

provided under subsection (2) in relation to a passenger or crew

member.

Note:

For example, if regulations made for the purposes of subsection (5)

prescribe a period of 48 hours before the aircraft's or ship's departure

from a place on the flight or voyage and also prescribe an event of the

passenger or crew member checking-in for the flight or voyage, then 2

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reports would be required to be provided under this section in relation

to the passenger or crew member.

13 Before section 245M

Insert:

245LB Dealing with information collected under this Division etc.

Collection of personal information

(1) The Department may collect information (including personal

identifiers) in a report provided under this Division.

Access to, and disclosure of, personal information

(2) The following provisions:

(a) section 336D (which authorises access to identifying

information);

(b) section 336E (other than subsection 336E(1)) and

section 336F (which authorise disclosure of identifying

information);

336F;

apply to personal information (other than personal identifiers)

collected under this Division, or under subsection 64ACA(11) or

64ACB(8) of the Customs Act 1901, in the same way as they apply

to identifying information.

(3) As soon as practicable after information is reported under

section 245L or 245LA, the Department must disclose the

information (including personal identifiers) to the Australian

Customs and Border Protection Service.

Effect on interpretation

(4) This section does not, by implication, affect the interpretation of

any other provision of this Act or an instrument made under this

Act.

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14 Subsection 245M(2)

Omit "Section 245L applies", substitute "Sections 245L and 245LA

apply".

15 Paragraph 245M(2)(a)

Omit "paragraph 245L(2)(a) or (b)", substitute "subsections 245L(2)

and 245LA(2)".

16 Paragraph 245M(2)(b)

Omit "subsection 245L(3)", substitute "subsections 245L(3) and

245LA(4)".

17 Subsections 245N(1), (2) and (4)

After "245L(2)", insert "or 245LA(2)".

Division 2

--Application of amendments made by Part 1

18 Application of amendments made by Part 1

Access and disclosure of identifying information etc.

(1)

The amendments made by items 1 and 2 of this Schedule, as they affect

section 336A, 336D or 336F of the Migration Act 1958, apply in

relation to personal identifiers and personal information provided

before, on or after the commencement of this Schedule.

Reports about arrivals including personal identifiers

(2)

The amendments made by item 4 apply in relation to an aircraft or ship

arriving at a place in Australia on or after that commencement.

(3)

However, subitem (2) does not apply to the extent that it would require

a report given before that commencement to include a personal

identifier.

Reports about arrivals at a place in Australia

(4)

The amendments made by items 6, 7, 9 and 10 apply in relation to an

aircraft or ship arriving at a place in Australia (whether or not an airport

or a port) on or after that commencement.

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(5)

However, if the aircraft or ship arrives at a place that is not an airport or

port, then subitem (4) does not apply to the extent that it would require

a report in relation to that arrival to be given before that

commencement.

Reports about departures

(6)

The amendments made by items 3, 4, 12, 14, 15, 16 and 17 apply in

relation to an aircraft or ship departing from a place in Australia on or

after that commencement.

(7)

However, subitem (6) does not apply to the extent that it would require

a report to be given before that commencement.

Dealing with information

(8)

The amendment made by item 13 applies in relation to information in

reports provided on or after that commencement.

Saving

(9)

If:

(a) an instrument was made for the purposes of a provision of the

Migration Act 1958; and

(b) the instrument was in force immediately before the

commencement of this Schedule; and

then the instrument continues in force (and may be dealt with) as if it

were made for the purposes of that provision as amended.

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Schedule 7

--Seizing bogus documents

Part 1

--Amendment of the Migration Act 1958

Division 1

--Main amendments

1 Section 103

After "present", insert ", produce".

2 Section 103

After "presented", insert ", produced".

3 Before section 487

Insert:

Division 1--Bogus documents

487ZI Prohibition on, and forfeiture of, bogus documents

(1) A person (whether a citizen or non-citizen) must not give, present,

produce or provide a bogus document to an officer, an authorised

system, the Minister, a tribunal or any other person or body

performing a function or purpose under, or in relation to, this Act

(the official), or cause such a document to be so given, presented,

produced or provided.

(2) A bogus document given, presented, produced or provided in

contravention of subsection (1) is forfeited to the Commonwealth.

487ZJ Seizure of bogus documents

(1) If an officer reasonably suspects that a document is forfeited under

subsection 487ZI(2), then the officer may seize the document.

(2) As soon as practicable after seizing the document, the officer must

give written notice of the seizure to the person who gave,

presented, produced or provided the document to the official under

subsection 487ZI(1).

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(3) The notice must:

(a) identify the document; and

(b) state that the document has been seized; and

(d) state that the document will be condemned as forfeited unless

the person institutes proceedings against the Commonwealth

before the end of the period specified in the notice:

(i) to recover the document; or

(ii) for a declaration that the document is not forfeited.

(4) For the purposes of paragraph (3)(d), the period must:

(a) start on the date of the notice; and

(b) end 90 days after that date.

487ZK Document condemned as forfeited

(1) If a document is seized under subsection 487ZJ(1), then:

(a) the person who gave, presented, produced or provided the

document to the official under subsection 487ZI(1); and

(b) if that person is not the owner of the document--the owner;

may, subject to paragraph (2)(b), institute proceedings in a court of

competent jurisdiction:

(d) for a declaration that the document is not forfeited.

(2) The proceedings:

(a) may be instituted even if the seizure notice required to be

given under subsection 487ZJ(2) in relation to the document

has not yet been given; and

(b) may only be instituted before the end of the period specified

in the seizure notice.

(3) If, before the end of the period specified in the seizure notice, the

person or owner does not institute the proceedings, the document is

condemned as forfeited to the Commonwealth immediately after

the end of that period.

(4) If, before the end of the period specified in the seizure notice, the

person or owner does institute the proceedings, the document is

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condemned as forfeited to the Commonwealth at the end of the

proceedings unless there is:

(a) an order for the person or owner to recover the document; or

(b) a declaration that the document is not forfeited.

(5) For the purposes of subsection (4), if the proceedings go to

judgment, they end:

(a) if no appeal against the judgment is lodged within the period

for lodging such an appeal--at the end of that period; or

(b) if an appeal against the judgment is lodged within that

period--when the appeal lapses or is finally determined.

487ZL Dealing with a document after it is condemned as forfeited

(1) If, under section 487ZK, a document is condemned as forfeited to

the Commonwealth, it must be dealt with or disposed of (including

by being given to another person) in accordance with any direction

given by the Minister under section 499.

(2) If the Minister considers that the document may be relevant to

proceedings in a court or tribunal, then the Minister:

(a) must give a direction under section 499 for the safe keeping

of the document; and

(b) must authorise access to the document for the purposes of

those proceedings.

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Division 2--Other

Division 2

--Contingent amendments

4 Subsection 487ZI(1)

After "bogus document", insert "(within the meaning of section 97)".

5 Subsection 487ZI(1)

Omit "(within the meaning of section 97)".

Division 3

--Application of amendments made by Part 1

6 Application of amendments

The amendments made by Part 1 of this Schedule apply to documents

given, presented, produced or provided to the official on or after the

commencement of item 1 of this Schedule.

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Part 2

--Amendment of the Australian Citizenship Act

2007

Division 1

--Main amendments

7 Section 3

Insert:

bogus document has the same meaning as in subsection 5(1) of the

Migration Act 1958.

8 Before section 46

Insert:

Division 1--Bogus documents

45A Prohibition on, and forfeiture of, bogus documents

(1) A person (whether a citizen or non-citizen) must not give a bogus

document to the Minister, a person acting under a delegation or

authorisation of the Minister, a tribunal or any other person or body

performing a function or purpose under, or in relation to, this Act

(the official), or cause such a document to be so given.

(2) A bogus document given in contravention of subsection (1) is

forfeited to the Commonwealth.

45B Seizure of bogus documents

(1) If the Minister reasonably suspects that a document is forfeited

under subsection 45A(2), then the Minister may seize the

document.

(2) As soon as practicable after seizing the document, the Minister

must give written notice of the seizure to the person who gave the

document to the official under subsection 45A(1).

(3) The notice must:

(a) identify the document; and

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(b) state that the document has been seized; and

(d) state that the document will be condemned as forfeited unless

the person institutes proceedings against the Commonwealth

before the end of the period specified in the notice:

(i) to recover the document; or

(ii) for a declaration that the document is not forfeited.

(4) For the purposes of paragraph (3)(d), the period must:

(a) start on the date of the notice; and

(b) end 90 days after that date.

45C Document condemned as forfeited

(1) If a document is seized under subsection 45B(1), then:

(a) the person who gave the document to the official under

subsection 45A(1); and

(b) if that person is not the owner of the document--the owner;

may, subject to paragraph (2)(b), institute proceedings in a court of

competent jurisdiction:

(d) for a declaration that the document is not forfeited.

(2) The proceedings:

(a) may be instituted even if the seizure notice required to be

given under subsection 45B(2) in relation to the document

has not yet been given; and

(b) may only be instituted before the end of the period specified

in the seizure notice.

(3) If, before the end of the period specified in the seizure notice, the

person or owner does not institute the proceedings, the document is

condemned as forfeited to the Commonwealth immediately after

the end of that period.

(4) If, before the end of the period specified in the seizure notice, the

person or owner does institute the proceedings, the document is

condemned as forfeited to the Commonwealth at the end of the

proceedings unless there is:

(a) an order for the person or owner to recover the document; or

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(b) a declaration that the document is not forfeited.

(5) For the purposes of subsection (4), if the proceedings go to

judgment, they end:

(a) if no appeal against the judgment is lodged within the period

for lodging such an appeal--at the end of that period; or

(b) if an appeal against the judgment is lodged within that

period--when the appeal lapses or is finally determined.

45D Dealing with a document after it is condemned as forfeited

(1) If, under section 45C, a document is condemned as forfeited to the

Commonwealth, it must be dealt with or disposed of (including by

being given to another person) in accordance with any direction

given by the Minister.

(2) If the Minister considers that the document may be relevant to

proceedings in a court or tribunal, then the Minister:

(a) must give a direction for the safe keeping of the document;

and

(b) must authorise access to the document for the purposes of

those proceedings.

(3) A direction given under this section is not a legislative instrument.

Division 2--Other

Division 2

--Contingent amendments

9 Section 3

Insert:

bogus document has the same meaning as in section 97 of the

Migration Act 1958.

10 Section 3 (definition of bogus document)

Omit "section 97", substitute "subsection 5(1)".

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