Justice Legislation Amendment (Terrorism) Bill 2018 Explanatory Memoranda

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Justice Legislation Amendment (Terrorism) Bill 2018

Justice Legislation Amendment (Terrorism) Bill 2018 Amended Print EXPLANATORY MEMORANDUM General Following the siege and hostage incident in Brighton on 18 June 2017, the Government appointed the Expert Panel on Terrorism and Violent Extremism Prevention and Response Powers (the Expert Panel) to review current legislation relating to terrorism and violent extremism. The Expert Panel produced 2 reports provided to the Government in August and September 2017. The Bill implements the legislative aspects of all 16 recommendations from Report 1 and recommendations 18 to 21 and 24 from Report 2. The Bill also implements 4 outstanding recommendations from the 2014 Victorian Review of Counter-Terrorism Legislation. The Bill amends the Terrorism (Community Protection) Act 2003, the Bail Act 1977, the Children, Youth and Families Act 2005, the Corrections Act 1986, the Crimes Act 1958, the Criminal Procedure Act 2009, the Sentencing Act 1991, and the Commission for Children and Young People Act 2012. Clause Notes Part 1--Preliminary Clause 1 sets out the purposes of the Bill. Clause 2 sets out when the provisions of the Bill come into operation. Subclause (1) provides that Part 1, Division 1 of Part 4, Division 1 of Part 5 and Part 6 come into operation on the day after the Bill receives Royal Assent. 581234 1 BILL LA AMENDED 12/6/2018

Subclause (2) provides that particular provisions come into operation on 1 October 2018. Subclause (3) provides that, subject to subclause (4), the remaining provisions of the Bill come into operation on a day or days to be proclaimed. Subclause (4) provides a default commencement date of 1 May 2019 if a provision has not otherwise commenced. Part 2--Amendment of Terrorism (Community Protection) Act 2003 Division 1--Preventative police detention The amendments to Victoria's preventative detention laws for terrorism suspects implement the Expert Panel's recommendations 2 and 16, Report 1, and recommendations 18 to 21 and 24, Report 2. The amended preventative detention framework draws on the existing preventative detention order provisions in the Terrorism (Community Protection) Act 2003, relevant provisions of Part III of the Crimes Act 1958 and Part IC of the Crimes Act 1914 of the Commonwealth. Clause 3 inserts new paragraph (baa) into the purposes section of the Terrorism (Community Protection) Act 2003 to provide for the making of police detention decisions. Clause 4 inserts new definitions into section 3 of the Terrorism (Community Protection) Act 2003. Where possible these definitions have been linked to existing defined terms in relevant legislation. Subclause (1) inserts the following new definitions-- Child is defined to be a person under 18 years of age. Child was previously not defined, as age was drafted into specific provisions. Commission for Children and Young People is linked to the definition in the Commission for Children and Young People Act 2012. Maximum police detention period is the maximum period of time for which a person may be detained under a police detention decision. It is defined as 4 days for an adult and 36 hours for a child. 2

Nominated senior police officer means a police officer appointed under section 13AZZJ. The nominated senior police officer has responsibility for periodic reviews of a person's detention under a police detention decision, and responsibility for making certain notifications. Periodic review is the regular review of the continuing need for a person's detention under a police detention decision conducted under section 13AZZN. Police detention decision is a police authorised preventative detention decision made under 13AC. Public Interest Monitor is either the Principal Public Interest Monitor or a Deputy Public Interest Monitor appointed under the Public Interest Monitor Act 2011. Questioning limitation condition is a limitation on questioning imposed by the Supreme Court in granting a preventative detention order under new section 13E(2A)(b). Questioning prohibition condition is a prohibition on questioning imposed by the Supreme Court in granting a preventative detention order under new section 13E(2A)(a). Other definitions such as the definitions of AFP Member, authorised police officer, Commonwealth control order, corresponding preventative detention law, IBAC, IBAC Commissioner, identification material, interim preventative detention order, lawyer, legal advice, police gaol, prescribed authority, preventative detention order, prison, prohibited contact order, seizable item, and youth justice facility have been moved from Part 2A (existing section 13B) into section 3 to ensure that they apply broadly to the whole of the Terrorism (Community Protection) Act 2003. The definitions have not changed. The existing section 13B is being repealed by clause 10 below. The definition of family member has been moved to section 3 from existing section 13ZD (Part 2A) to ensure that it applies broadly to the whole of the Terrorism (Community Protection) Act 2003. The definition has not changed. The existing definition in section 13ZD(1) is being repealed by clause 32 below. 3

Subclause (3) inserts new section 3(2) to enable the Chief Commissioner of Police to appoint in writing police officers or a class or classes of police officers, to be authorised for the purposes of making police detention decisions, applications for a preventative detention order or an extension of a preventative detention order, and applications for prohibited contact orders. Clause 5 inserts a new Division heading into Part 1A. Part 1A sets out the role of the Public Interest Monitor (PIM) in the Terrorism (Community Protection) Act 2003. Previously, the PIM was only involved in court proceedings. The Bill provides a role for the PIM in preventative police detention, in new Division 2 of Part 1A. Division 1 encompasses the PIM's role in relation to court applications for covert warrants, preventative detention orders, counter-terrorism intelligence protection orders, and prohibited contact orders. Clause 6 makes consequential amendments to sections 4C and 4D to account for the new Division structure for Part 1A of the Terrorism (Community Protection) Act 2003. Clause 7 inserts a new Division 2 into Part 1A of the Terrorism (Community Protection) Act 2003. Part 1A sets out the role of the Public Interest Monitor (PIM) in the Terrorism (Community Protection) Act 2003. New Division 2 encompasses the PIM's role in relation to preventative police detention. New section 4G sets out an authorised police officer's notification obligations with respect to the PIM. New section 4H sets out the nominated senior police officer's notification obligations with respect to the PIM. New section 4I requires authorised police officers, nominated senior police officers and police officers exercising powers and performing duties in relation to police detention decisions to fully disclose all adverse matters in relation to a police detention decision or periodic review to a PIM. It is an offence to knowingly or recklessly fail to provide full disclosure. New section 4I mirrors existing section 4E, which requires full disclosure in relation to court applications. New section 4J states that, for the avoidance of doubt, secrecy obligations do not apply in relation to the provision of information to a PIM under new Division 2. 4

New section 4K sets out the role of the PIM in relation to periodic reviews. It provides that a PIM is entitled to test the content and sufficiency of information relied on for the purposes of a periodic review and the different way a PIM may test the content and sufficiency of the information (that is, asking questions and making submissions). Where a PIM is not reasonably able to be contacted prior to a periodic review, a PIM must be notified as soon as practicable after the completion of the review and given any information requested. New section 4L provides that a PIM must be given a copy of the written record of the police detention decision as soon as practicable after the decision is made. New section 4M provides that the PIM must be given access to documents or information related to a police detention decision or the conduct of a periodic review. New section 4N provides that a PIM must return any documents received, either upon notification of the conclusion of the detention under a police detention decision or if the decision ceases to have effect. Clause 8 inserts a new Part 1B into the Terrorism (Community Protection) Act 2003. Part 1B sets out the role of the Commission for Children and Young People in relation to preventative detention of children. The Commission's active monitoring role was recommended by the Expert Panel in Report 2 (recommendation 24). New section 4O provides that, in addition to any other functions conferred on the Commission under Parts 1B, 2AA and 2A of the Terrorism (Community Protection) Act 2003, the Commission for Children and Young People has the following functions in relation to preventative detention under Part 2AA or 2A--  to monitor the treatment of a child in preventative detention;  to promote the interests of a child detained under a police detention decision or a preventative detention order; 5

 to access documents and information;  to provide advice to the Attorney-General, the Minister administering the Commission for Children and Young People Act 2012 or the Chief Commissioner about a child's treatment while in preventative detention;  any other prescribed function. As recommended by the Expert Panel, the Commission's role in monitoring a child's treatment in detention under the Terrorism (Community Protection) Act 2003 may include visiting and speaking to the child, inspecting the facilities where the child is detained, reviewing documentation related to the child's treatment and wellbeing (for example, rest periods, access to fresh air, meal breaks, access to health and therapeutic services, entitlements to visits from family or a lawyer) and accessing CCTV footage or recording of questioning (with appropriate restrictions to protect counter-terrorism intelligence). New section 4P requires that the Commission for Children and Young People must be given access to a child detained under a police detention decision or a preventative detention order for the purposes of performing any functions or exercising any power under the Terrorism (Community Protection) Act 2003. New section 4Q requires that the Commission for Children and Young People must be given access to any document or information kept by the Chief Commissioner or the Secretary to the Department of Justice and Regulation that relates to a child's treatment while in preventative detention. New section 4R requires that the Chief Commissioner and the Secretary to the Department of Justice and Regulation must ensure that the Commission for Children and Young People is given any reasonable assistance to reasonably perform its functions or exercise its powers that relate to the preventative detention of children. 6

Clause 9 inserts new Part 2AA into the Terrorism (Community Protection) Act 2003. Part 2AA--Preventative police detention New Part 2AA provides for a new police preventative detention power. These amendments implement the Expert Panel recommendations (Report 1--recommendations 2 and 16; Report 2--recommendations 18 to 21 and 24). Division 1--Preliminary New section 13AA sets out the purpose of the new Part, which is to provide for the taking into custody and detention of an adult or child for the purposes of preventing a terrorist act that is capable of being carried out, and could occur, within the next 14 days or preserving evidence of, or relating to, a recent terrorist act. Division 2--Police detention decisions New section 13AB sets out the definition of a police detention decision. This includes when the maximum period of detention commences and ends. Note that new section 13AF sets out when a detention decision starts and ceases to have effect. New section 13AC provides the grounds on which an authorised police officer may make a police detention decision. This includes that the decision must be made in relation to a person that is 14 years or older. The grounds have 3 aspects. For a terrorist act that is yet to occur, the authorised police officer must be satisfied that--  there are reasonable grounds to suspect that the person will engage in a terrorist act, or has a thing connected with the preparation for, or the engagement of a person in, a terrorist act, or has done an act in preparation for or planning a terrorist act; and  making the detention decision would substantially assist in preventing a terrorist act occurring; and  detaining the person is reasonably necessary to substantially assist in preventing a terrorist act occurring. 7

For terrorist act that has already occurred, the authorised police officer must be satisfied that--  a terrorist act has occurred within the last 28 days; and  it is necessary to detain the person to preserve evidence of, or relating to, the terrorist act; and  detaining the person is reasonably necessary to preserve that evidence. New subsection (3) provides that a detention decision must not be made on the same basis more than once unless the previous decision ceased to have effect under new section 13AF(2)(a). The intention is to make it clear that a person must not be detained under this power more than once in relation to the same terrorist act. New subsection (4) provides for the meaning of "on the same basis". New section 13AD stipulates that a child subject to a police detention decision must be detained in a youth justice facility unless the authorised police officer is satisfied that detention in another place is reasonably necessary. New subsection (2) sets out the factors that the police officer must have regard to when making the decision to detain a child in a place other than a youth justice facility. This is consistent with existing section 13F(8) of the Terrorism (Community Protection) Act 2003. New section 13AE sets out the requirement that a written record be made of a police detention decision and information that must be recorded in writing, and sworn or affirmed, to document that decision. This includes the facts and grounds considered; information about the person's age and capacity; previous detention decisions in relation to the person (made in relation to different terrorist acts); preventative detention orders and Commonwealth control orders. New section 13AF(1) clarifies that a police detention decision starts to have effect when it is made, which is in advance of the person being taken into custody. The period of detention only commences once the person is taken into custody. New subsection (2) provides that a police detention decision ceases to have effect either at the end of a default period if it has not been executed (48 hours), or when a person's detention under new Part 2AA ends under new Division 9. 8

New section 13AG makes it clear that a child under 14 years of age cannot be detained under a police detention decision, and must be released without delay if the police officer who is detaining the child is satisfied on reasonable grounds that the child is under 14 years of age. This implements the Expert Panel recommendation (Report 2--recommendations 18). Division 3--Carrying out police detention decisions New section 13AH provides that if a police detention decision has been made, any police officer may take the person into custody and any police officer may detain the person. New section 13AI sets out that when taking a person into custody under a police detention decision under new section 13AH, the police officer must inform the person that they are being taken into custody for that purpose. This both informs the person of the reason for the detention, and that the officer is exercising the power under Victorian law. This makes it clear that the detention is not made under a Commonwealth law. New section 13AJ sets out the requirement to endorse the written record of a police detention decision at the time a person is taken into custody or detained. The requirements mirror endorsement requirements when executing a preventative detention order. This is important for ensuring that relevant agencies are notified of the correct time that the detention commenced, ensuring that the court has the correct record if a preventative detention order is sought, and that the maximum detention period is correctly adhered to. New section 13AK requires a police officer to give the detained person a written summary of the grounds on which the police detention decision was made, as soon as practicable after the person is taken into custody. This does not require the police officer to disclose counter-terrorism intelligence. New subsection (3) clarifies that the police officer is not obliged to have a copy of the written record of the police detention decision or the written summary or produce a copy, when taking the person into custody. New section 13AL states that the person detained may request a copy of the written summary to be provided to their lawyer, and that the police officer must arrange this as soon as practicable after the request is made. This may be sent to the lawyer by any form of electronic communication. 9

New section 13AM makes it clear that compliance with new sections 13AK and 13AL is not required if impractical because of actions of the detained person. This is important because failure to comply could otherwise be an offence under new section 13AZZX. New section 13AN clarifies, for the avoidance of doubt, that the lawfulness of a person's detention is not affected by a failure to comply with new section 13AK or 13AL. New section 13AO provides that if a police officer is attempting to take a person into custody pursuant to a police detention decision, the police officer may request a person's name or address, or both, in order to assist the police officer in executing a police detention decision, and a failure to comply with the request without reasonable excuse is an offence. A police officer requesting a person's name or address must provide, on request, their own name, place of duty, ID number and rank. Failure to comply with a request for this information, without reasonable excuse, is also an offence. New section 13AP gives a police officer the power to enter any premises, using necessary and reasonable force, for the purpose of searching the premises for or taking into custody a person pursuant to a police detention decision if the police officer believes on reasonable grounds that the person is on those premises. New subsection (3) provides that residential premises must not be entered from 9 p.m. to 6 a.m. unless it is necessary to do so to prevent that concealment, loss or destruction of evidence of or relating to a terrorist act or it is not practicable to take the person into custody at another time. New section 13AQ provides that a police officer may search a person being taken into custody, if they suspect on reasonable grounds that a search should be carried out, and seize anything found. New section 13AR applies if a police detention decision is made in relation to a child. Subsection (2) requires that where a police detention decision provides that a child be detained in a youth justice facility, the detaining police officer must request the Secretary to the Department of Justice and Regulation to authorise the detention of that child in a youth justice facility. Subsection (3) provides that a detaining police officer may otherwise request that the Secretary authorise that a child 10

detained under a police detention decision be detained in a youth justice facility. The police officer is obliged to provide a written record that a police detention decision has been made, including the date and time the child was taken into custody, and any details of prohibited contact, and swear or affirm that record. If requested by the police officer detaining the child, the Secretary may authorise the detention of a child in a youth justice facility in writing. On giving that authorisation, a person at a youth justice facility acting under lawful authority on behalf of the Secretary may receive the child into the facility. A note at the foot of subsection (7) provides cross references to relevant custody provisions in the Children, Youth and Families Act 2005 and the Corrections Act 1986. New subsection (8) mirrors existing section 13WA(4) of the Terrorism (Community Protection) Act 2003. For example, new paragraph (d) enables a police officer to enter the youth justice facility and visit the child at any time, in relation to the exercise of powers and performance of obligations under the Terrorism (Community Protection) Act 2003. This is necessary to ensure that law enforcement can comply with their obligations under the Terrorism (Community Protection) Act 2003, and carry out the function for which the detention is authorised. New section 13AS sets out which specific provisions of the Children, Youth and Families Act 2005 apply to children detained under a police detention decision in a youth justice facility. This is consistent with existing section 13WA(5) to (8) of the Terrorism (Community Protection) Act 2003 in relation to preventative detention orders. This is to enliven the relevant provisions of that Act. These are--  The Secretary's powers to delegate to any function or power of the Secretary under that Act or the regulations (section 17(1) and, to the extent that it relates to section 597(3) or 597(4), section 17(2)).  Responsibilities to take into account a person's best interests in determining the form of care, custody or treatment (section 482(1) other than paragraphs (b) to (d)). 11

 A person's entitlements in detention, including reasonable efforts to meet their needs, information about rules and entitlements, to make complaints (section 482(2) other than paragraphs (a) and (b)).  The Secretary's responsibility to ensure that the entitlement provisions are complied with and to report to the Minister on the extent of the compliance (section 482(3)).  Custody deeming provisions, which deem a person detained in a remand centre, youth residential centre or youth justice centre to be in the legal custody of persons the Secretary, unless visited (section 483(1)), unless in the legal custody of the Chief Commissioner of Police under the Terrorism (Community Protection) Act 2003 (section 483(1A)).  Prohibited actions in relation to a person detained in youth justice facility including--isolation as a punishment, physical force that is not reasonable, necessary or otherwise authorised, corporal punishment, psychological pressure intended to intimidate or humiliate, or any form of physical or emotional abuse (section 487 other than paragraph (f) to the extent that that paragraph applies to discriminatory treatment that is reasonable and necessary having regard to the nature of the child's detention).  Powers and responsibilities relating to the management of persons in detention, including search and seizure of people in or entering the youth justice facility (sections 488A to 488G)  Offences in relation to persons held in youth justice facilities (section 501)  The Secretary's powers to make orders for certain medical services (such as medical treatment and admission to hospital) and operations (such as arrangements for the provision of necessary medical, dental, psychiatric, psychological or pharmaceutical services) relating to a person for whom the Secretary has responsibility (section 597). 12

New subsection (2) ensures that the relevant youth justice regulations apply to children detained in circumstances of police detention decisions. New subsection (3) clarifies that if there is any inconsistency, new Part 2AA of the Terrorism (Community Protection) Act 2003 prevails over the Children, Youth and Families Act 2005. New section 13AT provides for the process for a child detained in a youth justice facility to be transferred into the custody of the Chief Commissioner of Police for questioning during detention (see new Division 6 of new Part 2AA). An authorised police officer may request that the Secretary to the Department of Justice and Regulation release the child from detention in a youth justice facility into the custody of a police officer. The request must be a sworn, affirmed and written request that specifies that a police detention decision has been made and the date and time that the child was first taken into custody or detained. The Secretary may then, by instrument, authorise the release of the child from the facility into the custody of a police officer. A note at the foot of new subsection (6) provides cross references to relevant custody provisions in the Children, Youth and Families Act 2005 and the Corrections Act 1986. New section 13AU requires a child detained under a police detention decision to be returned to the youth justice facility at the cessation of questioning. A note at the foot of new subsection (2) provides cross references to relevant custody provisions in the Children, Youth and Families Act 2005 and the Corrections Act 1986. New section 13AV clarifies that any transfer of a child's custody for the purposes of questioning does not extend the maximum period that the child may be detained under new Part 2AA. Division 4--Informing person detained about police detention decision New section 13AW sets out a minimum level of information which must be provided soon as practicable after a person detained under a police detention decision. These information requirements are consistent with similar requirements for providing information to a person who is detained under a preventative detention order (section 13X of the Terrorism (Community Protection) Act 2003), and with the requirements 13

set out in the Crimes Act 1958 when a person is in custody. The information that must be provided includes--  that the decision has been made and the reasons;  the maximum period of detention;  the fact that an interim preventative detention order or preventative detention order may be applied for and the maximum period which would apply under those orders;  the fact that the person may be questioned during the period of detention, and the person's entitlement to reasonable breaks during questioning;  the people that the person may contact while in detention and any restrictions that may apply to that contact;  the name and work telephone number of the nominated senior police officer appointed to conduct periodic reviews of the person's detention, and the person's entitlement to make representations to the nominated senior police officer about their treatment in detention;  the person's entitlements to contact a lawyer, a consular office, an interpreter, or the Commission for Children and Young People;  the person's rights to complain to the Ombudsman or the IBAC and to seek a remedy in the court. New section 13AX makes it clear that compliance with the above obligations to provide information must be with the assistance of an interpreter if there are reasonable grounds to believe that an interpreter is required (which may be over the telephone). The assistance does not need to be in precise or technical language, is only required as far as it is practical to do so, and that non-compliance with the new section does not affect the lawfulness of a detention under new Part 2AA. Division 5--Treatment of person detained New section 13AY stipulates that a person being taken into custody or being detained under a police detention decision must be treated with humanity and with respect for human dignity; and must not be subjected to cruel, inhuman or degrading 14

treatment. This is consistent with existing section 13ZB of the Terrorism (Community Protection) Act 2003, section 22 of the Charter of Human Rights and Responsibilities Act 2006 and section 23Q of the Crimes Act 1914 of the Commonwealth. New section 13AZ provides that children should be detained separately from adults as a default, unless approved by the nominated senior police officer where there are exceptional circumstances. This is consistent with existing section 13ZBA of the Terrorism (Community Protection) Act 2003. New section 13AZA(1) sets out that a detained person is not entitled to contact another person except as provided under this Division, new Division 6 and new Division 7, and may be prevented from doing so. New subsection (2) indicates that the police must forward any letter from a child to the Ombudsman, the IBAC, or the Commission for Children and Young People. New section 13AZB imposes extra obligations on police officers detaining a person who has inadequate knowledge of English or a disability, to arrange for an interpreter to fulfil the information obligations, and give reasonable assistance to choose a lawyer for the person and contact that lawyer. This is consistent with existing section 13JA of the Terrorism (Community Protection) Act 2003. Division 6--Questioning Subdivision 1--Authority to question New section 13AZC allows a police officer to question a person detained under a police detention decision. New subsection (1) sets out the matters about which a person may be questioned. New subsection (2) requires the police officer to first inform the person of their rights to remain silent, communicate with a lawyer or a consular office, and to request an interpreter. New subsection (3) requires the police officer to first inform the person of the reasons for the making of the police detention decision. New subsection (4) requires the period of questioning to be limited to a reasonable duration. New subsection (5) requires the person to be given a continuous 8 hours of rest from questioning in any period of 24 hours of detention, as well as reasonable breaks during any period of questioning. Note that for a child in detention, the child, their parent or guardian, an independent person in attendance or their lawyer may, during questioning, request additional breaks (new section 13AZG(6) 15

below). New subsection (6) clarifies that the limitations on questioning in this section do not restrict the questioning of a person to ensure their safety and wellbeing, or comply with a requirement in relation to their detention. New section 13AZD imposes an obligation on a police officer to arrange for an interpreter before commencing questioning, if the officer has reasonable grounds to believe that the person is unable to communicate with reasonable fluency in the English language. New section 13AZE imposes an obligation on a police officer to not commence questioning for a reasonable time to enable the person to communicate with, or attempt to communicate, with a lawyer or the consular office of the country of which the person is a citizen. This requirement is subject to certain contact prohibitions. New section 13AZF imposes an obligation on a police officer to allow a person in detention to communicate with their lawyer before questioning commences, and allow for the lawyer to be present during questioning and to give advice to the person. This requirement is subject to certain contact prohibitions. New section 13AZG imposes further obligations in relation to the questioning of children. New subsection (2) provides that, subject to certain other provisions, a child should not be questioned without a parent, guardian or independent person present. The police officer is required to provide the child time to communicate with the parent, guardian or independent person. New subsection (3) provides that if the child or their parent or guardian does not arrange for a lawyer to be present during the questioning, a police officer must request Victoria Legal Aid to arrange a lawyer to be present during questioning. Under new subsection (4), Victoria Legal Aid must arrange a lawyer to be present during questioning and offer to provide legal advice to the child. The VLA arranged lawyer may only be excluded from the questioning if a police officer believes that they are unreasonably interfering with the questioning. The child, parent, guardian, independent person or lawyer may request a break in the questioning if the child becomes distressed or unable to concentrate; this request must not be unreasonably refused. 16

New section 13AZH provides that contact entitlements under new section 13AZE, 13AZF or 13AZG(2) do not have to be complied with in certain circumstances. This provision is based on similar provisions relating to questioning in the Crimes Act 1958. Subdivision 2--Recording of questioning The giving of required information to a person in detention, questioning of the person and the person's responses (if any) to any questions and information provided must be recorded. With some necessary modifications, these provisions are consistent with the Crimes Act 1958 and the Crimes Act 1914 of the Commonwealth. New section 13AZI sets out a number of definitions which are not included in section 3 because they pertain only to this new Subdivision including--  authorised person, publish, and recording, which are based on section 464JA of the Crimes Act 1958.  representation, which has the same meaning as in the Evidence Act 2008. New section 13AZJ provides that digital audio or audiovisual recordings must be certified as unaltered and as made in accordance with prescribed regulations. New section 13AZK requires all questioning and responses, and the giving of information to detained persons to be recorded. If the person being questioned is a child, this must be audiovisually recorded. If the person being questioned is an adult, this must be audiovisually recorded if practicable, or audio recorded if not. New section 13AZL requires the police officer to give a copy of the recordings and any transcripts prepared to the detained person or the person's lawyer. This must be done as soon as practicable, at the most not later than 7 days after the recording was made. New section 13AZM makes adverse representations inadmissible in proceedings for an offence unless a recording is available to be tendered in evidence. New subsection (2) enables a court to authorise the admission of the evidence in exceptional circumstances, where justified. 17

New section 13AZN sets out offences for possession, disclosure, copying, tampering or publishing the recordings. The maximum penalties match the equivalent offences in section 464JA of the Crimes Act 1958. There are several exceptions for the lawful possession and use of the recordings, including for the person questioned, their lawyer, an authorised person, the recording is sealed, the recording is played before a court or tribunal, in relation to an inquest, a disciplinary action against a police officer, a disciplinary action against a lawyer, in accordance with the direction of a court, or by an authorised person. New section 13AZO permits a court to give directions that a recording can be supplied, copied, edited, erased, played or published. New section 13AZP imposes an obligation on the Chief Commissioner of Police to keep a copy of a recording in safe custody for 7 years. A court may order that the recording be kept for a longer period. Division 7--Contact with other people New section 13AZQ provides that a person detained under a police detention decision is entitled to a single contact with a family member, employer or employee to let that person know that they are safe and being detained. This may be by telephone or electronic communication. If reasonably practicable, a police officer must allow further contact with one or more of the person's family members or any other person, by visitation or telephone or electronic communication. This section is subject to the prohibited contact provisions in new section 13AZZB. New section 13AZR provides that a person being detained is entitled to contact the Ombudsman or the IBAC. New section 13AZS provides that a child being detained is entitled to contact the Commission for Children and Young People. This includes being visited by the Commission for Children and Young People. New section 13AZT provides that a person who is not a citizen or permanent resident of Australia is entitled to contact the consular office of their country of citizenship. This is subject to the prohibited contact provisions in new section 13AZZB. 18

New section 13AZU provides that a person being detained is entitled to contact a special counsel appointed to represent that person's interests. A special counsel may be appointed under new section 32 (see clause 71 of this Bill which inserts new Part 5 (new sections 23 to 37A) into the Terrorism (Community Protection) Act 2003). New section 13AZV provides that a person being detained is entitled to contact a lawyer for specified reasons. The reasons include--obtaining advice in relation to the police detention decision, their questioning, treatment in detention, or to act in relation to order applications under the Act, remedies, complaints to the Ombudsman or the IBAC, or in relation to proceedings which are scheduled to take place while the person is in detention, in which the person is a party or has standing to appear. This section is subject to the prohibited contact provisions in new section 13AZZB. New section 13AZW requires a police officer to provide reasonable assistance to contact another lawyer if the person is not permitted to, or is unable to, contact their preferred lawyer. This is consistent with existing section 13ZF(3) of the Terrorism (Community Protection) Act 2003. Subsections (3) and (4) make it clear that an appropriate security clearance should be prioritised when choosing a lawyer, but the person is entitled to choose a lawyer without an appropriate security clearance. New section 13AZX provides that contact with another person (other than a lawyer) may be monitored by a police officer. Subsections (2) and (3) make it clear that monitoring may be with the assistance of an interpreter or another police officer, and there is an obligation on the police officer to arrange for an interpreter if one is requested. This provision mirrors existing section 13ZG of the Terrorism (Community Protection) Act 2003. New section 13AZY relates to contact with a lawyer for authorised purposes. Authorised communications between a detained person and a lawyer must not be monitored unless a nominated senior police officer is satisfied that the monitoring is reasonably necessary. Communications that are necessary to monitor under this section must take place in a way that can be effectively monitored. New subsection (7) makes it clear that any communication between a person and a lawyer for an authorised purpose, or information derived from or obtained as a result of monitoring communication, is not admissible in 19

evidence against the person in any proceedings in a court or tribunal. New subsection (8) states that the section does not apply to contact with a lawyer for the purpose of communication with a special counsel under new section 33(1)(b) or (2)(b) which is being inserted to the Act by clause 71 of the Bill. Note that new section 13AZZX makes it an offence for communication with a lawyer to be monitored if not authorised in accordance with subsection (2). New section 13AZZ provides that children or persons incapable of managing their own affairs are entitled to have additional contact with their parents or guardians or another acceptable representative. The minimum period of entitled contact is 2 hours, extendable if permitted. The contact may be monitored. If the person requests an interpreter the detaining police officer is obliged to arrange one if it is reasonably practicable, as soon as reasonably practicable. New section 13AZZA provides that if a detained person has contact with a parent or guardian consistent with additional contact permitted under new section 13AZZ, and contact with another parent or guardian is prohibited, the nominated senior police officer must inform the contacted parent or guardian they are prohibited from disclosing to the other parent or guardian the following things--the fact that a police detention decision has been made, the fact that the detainee is being detained or any information that the detainee gives the parent or guardian in the course of the contact. New section 13AZZB allows the authorised police officer who made the police detention decision to prohibit contact with a person, contrary to the general contact entitlements, if the officer believes on reasonable grounds that contact would result in certain circumstances, including--  serious harm to a person;  destruction of evidence of a terrorist act;  interference with information gathering in relation to terrorist acts;  a risk in relation to prevention of terrorism, arrest or detention, or service of a Commonwealth control order. 20

This provision is based on provisions for prohibited contact orders that may be made under Part 2A of the Terrorism (Community Protection) Act 2003. Division 8--Taking and using identification material This new Division is consistent with existing sections 13ZL and 13ZM of the Terrorism (Community Protection) Act 2003. New section 13AZZC is based on existing section 13ZL(10). It defines an appropriate person for the purposes of having someone present when identification material is taken from a child or a person incapable of managing their affairs (the vulnerable person). It excludes police officers from any jurisdiction, and AFP and ASIO officers or employees. Aside from those exclusions it can be any person who is capable of representing the vulnerable person's interests and acceptable to the vulnerable person and the police officer detaining the vulnerable person (as far as practicable). New section 13AZZD is based on existing section 13ZL. This provision sets out the circumstances in which identification material can be taken from a detained person. New subsection (2) provides that--  the person can consent in writing; or  a police officer of or above the rank of sergeant can authorise taking the identification material from an adult without consent (using necessary and reasonable force) if the officer believes on reasonable grounds that it is necessary to do so--  to confirm the person's identity as the person; or  to document an illness or injury suffered by the person while being detained. New subsections (4) and (5) provide that only the Magistrates' Court (in the case of a person incapable of managing their own affairs) or the Children's Court (in the case of a child) can order that the material be taken. The Court can take into account the detained person's age or any disability and any other matters. New subsection (6) requires the presence of a parent or guardian, or appropriate person, when taking identification material from a 21

child or a person who is incapable of managing their affairs. Appropriate person is defined in new section 13AZZC. New subsections (7), (8), (9) and (10) provide--  a court order is not required if a child or person incapable of managing their own affairs consents in writing and their parent, guardian or appropriate person agrees in writing; and  a court order is still required if only the child or the support person agrees, in writing, and the court must take into account the detainee's age or any disability and any other matters it thinks fit. New section 13AZZE prescribes that identification material taken from a detainee may only be used for identification purposes. New section 13AZZF requires the identification material to be destroyed as soon as practicable after 12 months if proceedings in relation to the police detention decision, or the detainee's treatment, have not commenced or have been discontinued. Division 9--End of and release from detention New section 13AZZG sets out the circumstances under which detention under new part 2AA. Subsection (1) provides that the detention ends--  at the end of the maximum period of police detention (that is, 4 days for an adult or 36 hours for a child); or  if the person is taken into custody for the purposes of the Crimes Act 1958; or  is arrested under the Crimes Act 1914 of the Commonwealth; or  becomes a protected suspect within the meaning of the Crimes Act 1914 of the Commonwealth. This reflects the intention that preventative police detention is an extraordinary and exceptional power, which should not replace other powers that allow a person to be taken into custody or arrested. New subsection (2) requires that detention must end before the end of the maximum permitted period if the police officer detaining the person or the nominated police senior officer is 22

satisfied that the grounds on which the police detention decision in relation to the person was made have ceased to exist. New subsection (3) clarifies that if a preventative detention order is made and takes effect before the end of the maximum police detention period, the person's detention under this Part ends when the order takes effect. Pursuant to new subsection (4), if new subsection (1)(a) or (2) applies, the police officer detaining the person must, without delay, release the person or arrange for the person's release from detention. New section 13AZZH sets out the process for the release of a person from detention or so that the person can be dealt with under the Crimes Act 1958, the Australian Security Intelligence Organisation Act 1979 of the Commonwealth or the Crimes Act 1914 of the Commonwealth. A person being released must be given a written statement that the person is being released from that detention, which is signed by the releasing police officer. New subsection (2) exempts the releasing police officer from the requirement to provide a written statement if the person is to be transferred into a different custody arrangement under legislation outlined above. New section 13AZZI sets out the interaction between a police detention decision and a Commonwealth questioning warrant (under section 34D of the Australian Security Intelligence Organisation Act 1979 of the Commonwealth). If a warrant is in force and a copy given to the detaining police officer, the police officer must comply with the warrant and may release the person from detention so that the person may be dealt with in accordance with the warrant. New subsection (4) makes it clear, for the avoidance of doubt, that any release from detention for the purposes of complying with a warrant does not extend the maximum period of police detention for that person. This is consistent with existing section 13U of the Terrorism (Community Protection) Act 2003. Division 10--Oversight by nominated senior police officers New Division 10 is based on the existing preventative detention order provisions in Division 3 of Part 2A of the Terrorism (Community Protection) Act 2003. 23

New section 13AZZJ provides that a police officer of or above the rank of superintendent must be nominated by the Chief Commissioner of Police, as soon as practicable after the making of the police detention decision. The nominated senior police officer must not have been involved in the making of the police detention decision. This mirrors existing section 13P(4) and (5). New section 13AZZK provides that the role of the nominated senior police officer is to oversee the exercise of powers under Part 2AA, and the performance of obligations in relation to the person's detention under Part 2AA, to undertake periodic reviews of the continued detention pursuant to the police detention decision, and to receive and consider any representations that are entitled to be made (under new section 13AZZL). This largely mirrors existing section 13P(6). However, detention under a preventative detention order does not require periodic reviews, as detention is ordered by the Supreme Court. New section 13AZZL provides for making representations to a nominated senior police officer. New subsection (1) lists the people who are entitled to make representations. The list includes the detained person and their lawyer, the Ombudsman, the IBAC Commissioner, a contact person (in the case of a child or a person incapable of managing own affairs), and the Commission for Children and Young People (in the case of children). New subsection (2) specifies the matters about which representations may be made--the exercise of police detention decision powers and the performance of the police detention decision obligations, compliance with the requirements relating to the end of and release from detention, or the treatment of the person detained. These representations may be made for the purpose of a periodic review. New section 13AZZM sets out the people and organisations that the nominated senior police officer must notify in writing when a police detention decision is made in relation to a person and when that person is taken into custody and detained. This includes the Ombudsman, the IBAC, and, in the case of a child, the Secretary to the Department of Justice and Regulation and the Commission for Children and Young People. This ensures that these persons and organisations are able to be involved and make representations to the nominated senior police officer, if needed. (Note that the PIM must also be notified pursuant to new Division 2 of Part 1A.) 24

New section 13AZZN sets out the requirements for conducting a periodic review of detention. The nominated senior police officer is required to assess whether the person's detention under a police detention decision should continue. The first review must be conducted as soon as practicable after the person has been taken into custody, and after that, no later than 12 hours after the last review. The review may be conducted at any time, and should be conducted as soon as information becomes available which signals the need for the police detention decision should be reassessed. New subsection (3) requires the nominated senior police officer to have regard to submissions made by the PIM, and any representations which are entitled to be made (under new section 13AZZL). Subsections (4) and (5) provide for a process for ensuring the PIM is able to fulfil its role in relation to periodic reviews. New subsection (7) requires the nominated senior police officer to give written conclusions to the detaining police officer, without delay after completing a review. Division 11--Restrictions on disclosure of information relating to detention New Division 11 sets out a number of disclosure offences. These are important for highlighting the sensitivity of the information and necessary for protecting that information from unauthorised release. The offences mirror the existing preventative detention order disclosure offences and penalties in section 13ZJ of the Terrorism (Community Protection) Act 2003. New section 13AZZO defines a detainee to be a person detained under new Part 2AA. New section 13AZZP creates a disclosure offence for detainees. It is an offence if, while the detainee is in detention under new Part 2AA, the detainee intentionally discloses to another person the police detention decision, that the detainee is detained or that contact has been prohibited. Paragraph (d) creates exceptions for disclosure, which refer to contact permitted under new Part 2AA. This provision is based on existing section 13ZJ(1). New section 13AZZQ creates a disclosure offence for lawyers contacted by detainees or a detainee's parent, guardian or contact person. It is an offence if, while the detainee is in detention under new Part 2AA, the lawyer intentionally discloses to another person the police detention decision, that the person is 25

detained or any information that was received in the course of contact. Paragraph (d) creates exceptions for disclosure, which is for a related court proceeding, an Ombudsman or IBAC complaint, to communicate with the Commission for Children and Young People, or to make representations to the nominated senior police officer. New subsection (2) provides that a lawyer does not commit the offence if the lawyer only lets another person know that the detainee is safe but is not able to be contacted for a specified period. This provision is based on section 13ZJ(2). New section 13AZZR creates a disclosure offence for parents or guardians who have been contacted by detainees. It is an offence if, while the detainee is in detention under new Part 2AA, the parent or guardian intentionally discloses to another person who is not entitled to have contact with the detainee or any information that was received (including the police detention decision or that the person is detained). Paragraph (e) creates exceptions for disclosure, which is for an Ombudsman or IBAC complaint, to contact a lawyer that the detainee is entitled to contact, or to make representations to the nominated senior police officer. New subsection (2) provides that a person employed by the Department of Justice and Regulation or Department of Health and Human Services does not commit the offence if the person only makes a disclosure to another person employed in the relevant Department in the exercise of powers or performance of functions. Subsection (3) provides that a person does not commit the offence if the person only lets another person know that the detainee is safe but is not able to be contacted for a specified period. This provision is based on existing section 13ZJ(3), (4) and (5). New section 13AZZS creates a specific offence for a parent or guardian of a detainee to disclose certain information to another parent or guardian, if the nominated senior police officer informs that person that the disclosure is prohibited. This provision is based on existing section 13ZJ(6). New section 13AZZT enables the nominated senior police officer to inform a parent or guardian that the detainee is not entitled to contact the other parent or guardian where a parent or guardian has indicated that they intend to disclose information to the other parent or guardian. This provision is based on existing section 13ZJ(7). 26

New section 13AZZU creates a disclosure offence for interpreters who assist in monitoring the detainee's contact. It is an offence if, while the detainee is in detention under new Part 2AA, the interpreter intentionally discloses to another person any information that was obtained (including the police detention decision or that the person is detained). There are no exceptions. This provision is based on existing section 13ZJ(8). New section 13AZZV creates a disclosure offence for recipients of information that it is an offence to disclose. It is an offence if, while the detainee is in detention under new Part 2AA, the recipient intentionally discloses to another person any information that is not permitted to be disclosed. Paragraph (e) makes an exception for disclosures made to a person exercising authority under new Part 2AA or a person with responsibility for the safety or wellbeing of the detainee. This provision is based on existing section 13ZJ(9). New section 13AZZW creates a disclosure offence for people who monitor or assist in the monitoring of the detainee's contact with a lawyer. This could be a police officer or an interpreter. It is an offence to intentionally disclose to any other person any information that was communicated to their lawyer for authorised purposes. There are no exceptions. Disclosure of communication with a lawyer cannot be made to other police officers or other authorised persons, and this offence is not limited to the duration of the detention. This offence is an important safeguard in the context of requiring that the detainee's communication with their lawyer be monitored. This provision is based on existing section 13ZJ(10). Division 12--Miscellaneous New section 13AZZX creates offences of contravening certain safeguards under the Terrorism (Community Protection) Act 2003. The offences may be committed by act or omission. These are similar to the contravention offences in existing section 13ZN of the Terrorism (Community Protection) Act 2003. New section 13AZZY places the obligations and responsibilities under new Part 2AA on the most senior police officer involved in the detention of the person under new Part 2AA. 27

New section 13AZZZ provides, for the avoidance of doubt, that the functions and powers of the Ombudsman and the IBAC are not affected by new Part 2AA. This mirrors existing section 13ZS of the Act. New section 13AZZZA provides, for the avoidance of doubt, that the law relating to legal professional privilege and client legal privilege is not affected by new Part 2AA. This mirrors existing section 13ZT of the Terrorism (Community Protection) Act 2003. New section 13AZZZB requires an authorised police officer to make a report to the Victorian Inspectorate within 7 days after a person's detention under new Part 2AA ends. New subsection (2) sets out the requirements for the information that the report must contain. New section 13AZZZC clarifies that nothing in new Part 2AA prevents a detained person being taken to a place to receive necessary medical, dental, psychiatric, physiological or pharmaceutical services. Amendments to Part 2A--Preventative detention orders Existing Part 2A of the Terrorism (Community Protection) Act 2003 provides for preventative detention orders. Preventative detention orders are retained under the new framework, but updated to reflect new Part 2AA and to remove the general prohibition on questioning. These amendments implement the Expert Panel recommendations (Report 1-- recommendation 2; Report 2--recommendations 18 to 21 and 24). Clause 10 repeals section 13B of the Terrorism (Community Protection) Act 2003, which was the definitions section for Part 2A. These definitions have now been moved to section 3 of the Act by clause 4 of the Bill. Clause 11 inserts new section 13C(1A) into the Terrorism (Community Protection) Act 2003, to require that an application for a preventative detention order for a child already detained under a police detention decision be made as soon as practicable. This implements the Expert Panel recommendation 20, Report 2. 28

Clause 12 amends section 13D of the Terrorism (Community Protection) Act 2003, which sets out the form and content of an application for a preventative detention order. The changes are consequential to the inclusion of police detention decisions in the preventative detention framework. New paragraph (iia) in section 13D(1) ensures that the court will have information about detention under a police detention decision when assessing a preventative detention order application. New subsection (3A) in section 13D ensures that the Supreme Court will be informed, in an application for a preventative detention order, about the information that became available subsequent to the making of a police detention decision. Substituted subsection (6) of section 13D updates the exclusion on making an application without notice to a person already in detention under a corresponding preventative detention law, so that it includes a person in detention under new Part 2AA. Clause 13 amends section 13E of the Terrorism (Community Protection) Act 2003, which sets out the requirements for the Supreme Court in making a preventative detention order. New subsection (2A) enables the Supreme Court to make a preventative detention order subject to a condition that prohibits questioning under new Division 5A of a person detained under a preventative detention order (a questioning prohibition condition), or limits that questioning to specified times in a day or for a specified period (a questioning limitation condition). This amendment is included as a result of removing the general prohibition on questioning a person detained under a preventative detention order. New subsection (2B) provides that the Supreme Court may make a preventative detention order subject to one of those conditions if satisfied that it is appropriate to do so in all the circumstances. New subsection (2C) enables the Supreme Court to impose conditions on a preventative detention order made in relation to a child where satisfied that it is appropriate to do so in all the circumstances. This implements part of recommendation 24, Report 2 of the Expert Panel. 29

Substituted subsection (3) provides that the Supreme Court may refuse to make a preventative detention order unless an authorised police officer provides any further requested information concerning the grounds on which the order is sought and, in the case of an application under section 13C in relation to a child and in relation to which the Court is considering making the order subject to conditions, the authorised officer applying for the order satisfies the Court that any such conditions can be met. This new paragraph (b) also gives effect to recommendation 24 of Report 2. Amended subsection (4) removes the limitation that an interim order can only be made if an application is made without notice. This is to allow an interim preventative detention order to be made where a person is detained under new Part 2AA and a preventative detention order is sought. Amended subsection (9) now includes a person detained under new Part 2AA is entitled to appear in preventative detention order proceedings. Clause 14 amends section 13F of the Terrorism (Community Protection) Act 2003, which sets the form, commencement, duration and content requirements for a preventative detention order. Substituted subsection (1) now includes a reference to detention under new Part 2AA. Substituted subsection (1)(b) is updated to clarify that it refers to detention under a preventative detention order. Subclause (2) inserts new paragraph (da) into section 13F(4) which requires the preventative detention order to set out that the person may be questioned. Subsection (2) also inserts paragraph (ga) which requires the order to set out any conditions on questioning imposed by the Supreme Court and new paragraph (gb) which requires an order in relation to a child to also set out any conditions imposed. These amendments are included as a result of removing the general prohibition on questioning a person detained under a preventative detention order and also allowing the Court to impose conditions on an order made in relation to a child. Subclause (3) substitutes new section 13F(5). New substituted subsection (5) clarifies that counter-terrorism intelligence does not need to be disclosed in a summary. This amendment is to reflect the new definition of counter-terrorism intelligence 30

inserted into section 3 of the Terrorism (Community Protection) Act 2003 by clause 64 of this Bill. Subclause (4) substitutes new section 13F(9). New substituted subsection (9) clarifies that nothing prevents a person detained under a preventative detention order from being taken to a place for the provision of necessary medical, dental, psychiatric, physiological or pharmaceutical services. This existing paragraph is updated to reflect new section 13AZZZC. Subclause (5) inserts new subsection (11) into section 13F which makes it a requirement that when a preventative detention order relates to a child, the nominated senior police officer must notify the Commission for Children and Young People of the making of the order and when the child has been taken into custody, and provide a copy of the order. Clause 15 amends section 13G(1) of the Terrorism (Community Protection) Act 2003, which sets the maximum duration of preventative detention orders. The maximum duration continues to be 14 days. The amendment clarifies that this period is inclusive of the period that a person is detained under new Part 2AA on the same basis as the preventative detention order. Clause 16 substitutes the note at the foot of section 13H(1) of the Terrorism (Community Protection) Act 2003 with 2 notes, which provide that a preventative detention order starts to have effect when the person is taken into custody. The amendment adds a reference to Division 9 of Part 2AA, which refers to when detention under new Part 2AA ends. Clause 17 amends section 13J of the Terrorism (Community Protection) Act 2003, which sets the minimum age for a preventative detention order. The minimum age is amended to 14 years of age. This implements the Expert Panel recommendation (Report 2--recommendation 18). Clause 18 amends section 13K of the Terrorism (Community Protection) Act 2003, which restricts multiple preventative detention orders being made for the same person in relation to the same terrorist act. The clause inserts new subsection (1A) into section 13K to provide that if a police detention decision is made in relation to a person on the basis of assisting in preventing a terrorist act occurring within a particular period and the person is being detained under new Part 2AA, a preventative detention order 31

cannot be made on the basis of assisting in preventing a different terrorist act occurring in the same period, unless based on new information. Clause 19 amends section 13KA of the Terrorism (Community Protection) Act 2003, which sets out when a prohibited contact order can be sought and made. The clause inserts new subparagraph (iia) into section 13KA(4)(e) which allows a risk to taking a person into custody under a police detention decision to be a consideration in making a prohibited contact order. Clause 20 amends section 13P of the Terrorism (Community Protection) Act 2003 which provides the power to detain a person under a preventative detention order. Subclause (1) inserts a note at the foot of the section 13P(1)(a) to provide cross references to relevant custody provisions in the Corrections Act 1986. Subclause (2) inserts new paragraph (ba) into section 13P(7) to include the Commission for Children and Young People within the list of persons who may make representations to the nominated senior police officer. Clause 21 amends section 13Q of the Terrorism (Community Protection) Act 2003 which sets out the requirements for endorsing the preventative detention order when a person is taken into custody. The amendment makes it clear that the time that the preventative detention order custody commences should be endorsed, even if the person was first in custody under a police detention decision. Clause 22 amends section 13W of the Terrorism (Community Protection) Act 2003 to insert new subsection (4A) to provide that, where the Secretary to the Department of Justice and Regulation has authorised the transfer of a person detained under a preventative detention order from a police gaol or other place where they are being detained to a prison, a person acting under lawful authority at a prison may receive the person into the prison. A note at the foot of new subsection (4A) provides cross references to relevant custody provisions in the Corrections Act 1986. Clause 23 amends section 13WA of the Terrorism (Community Protection) Act 2003. Subclause (1) inserts new subsection (3A) to provide that, where the Secretary to the Department of 32

Justice and Regulation has authorised the transfer of a person detained under a preventative detention order from any place where they are being detained to a youth justice facility, a person acting under lawful authority at a youth justice facility may receive the person into the facility. A note at the foot of new subsection (3A) provides cross references to relevant custody provisions in the Children, Youth and Families Act 2005 and the Corrections Act 1986. Subclause (2) repeals paragraph (f) of section 13WA(5), which applied section 486 of the Children, Youth and Families Act 2005, as that provision no longer exists. Clause 24 inserts new sections 13WB, 13WC and 13WD into the Terrorism (Community Protection) Act 2003 to provide for the process for a person being detained in a prison or youth justice facility under a preventative detention order to be transferred into the custody of the Chief Commissioner of Police for questioning during detention (see new Division 5A of Part 2A) and then returned at the end of questioning. New section 13WB provides that an authorised police officer may request that the Secretary to the Department of Justice and Regulation release the person from detention in a prison or youth justice facility into the custody of a police officer. The request must be accompanied by a copy of the preventative detention order that is endorsed with date and time that the person was taken into custody or detained under the order (and any extension or further extension of the order). Under new subsection (4), the Secretary may then, by instrument, authorise the release of the person from detention in the prison or youth justice facility into the custody of a police officer. A note at the foot of new subsection (5) provides cross references to relevant custody provisions in the Children, Youth and Families Act 2005 and the Corrections Act 1986. New section 13WC requires a person detained under a preventative detention order to be returned to the prison or youth justice facility at the cessation of questioning. A note at the foot of new subsection (2) provides cross references to relevant custody provisions in the Children, Youth and Families Act 2005 and the Corrections Act 1986. 33

New section 13WD clarifies that any transfer of a person's custody under new section 13WB or 13WC does not extend the period for which the preventative detention order remains in force. Clause 25 amends section 13X of the Terrorism (Community Protection) Act 2003, which sets out the information that must be provided to a person as soon as practicable after the person is detained under a preventative detention order. Clause 25(a) inserts new paragraphs (ca), (cb) and (cc) into section 13X(2) which require the provision of information about the fact that a person's communication with a family member or lawyer may be monitored, the application of any questioning prohibition condition, and the fact that a person may be questioned and the entitlement for breaks, respectively. These new paragraphs are included as a result of removing the general prohibition on questioning a person detained under a preventative detention order. Clause 25(b) amends section 13X(2)(e)(i) and clause 25(c) inserts new section 13X(2)(f)(iia) to include references to counter-terrorism intelligence protection orders. Clause 25(c) inserts new paragraphs (ga), (gb) and (gc) into section 13X(2) to require the provision of information about entitlement to contact the Commission for Children and Young People, an interpreter or a consular office, respectively. Clause 26 amends section 13ZA of the Terrorism (Community Protection) Act 2003, which requires the detainee to be given a copy of the preventative detention order and any prohibited contact order, and a summary of the grounds. Subclause (1) substitutes a new subsection (2) which clarifies that counter-terrorism intelligence does not need to be disclosed in a summary. This amendment reflects the new definition of counter-terrorism intelligence inserted into section 3 of the Terrorism (Community Protection) Act 2003 by clause 64 of this Bill. Clause 27 amends section 13ZBA(2) and (3) of the Terrorism (Community Protection) Act 2003 to refer to a nominated senior police officer nominated under section 13P(4). 34

Clause 28 amends section 13ZC of the Terrorism (Community Protection) Act 2003, which sets out restrictions on contact with other people during a preventative detention order. Subclause (1) amends section 13Z(1) to update section cross references which relate to amendments to the contact provisions under Part 2A. Subclause (2) substitutes section 13ZC(2) with a new subsection which includes the Commission for Children and Young People in the list of people to which a detainee can send a letter and updates references to the repealed Complaints (Australian Federal Police) Act 1981 of the Commonwealth. Clause 29 amends section 13ZD(2) and (6)(b) of the Terrorism (Community Protection) Act 2003, which set out permitted contact with family members. The subsections are being updated to reflect that any electronic communication may be used. Clause 30 amends section 13ZF of the Terrorism (Community Protection) Act 2003, which sets out entitlements to contact a lawyer, and the purposes for which communication with a lawyer is permitted. Subclause (1) amends section 13ZF(1) so that communication with a lawyer in relation to questioning and the new counter-terrorism intelligence protection orders are captured and permitted by the Act. Subclause (2) amends section 13ZF(2)(b) to provide that any electronic communication may be used. Subclause (3) amends section 13ZF(3)(b)(i) to include reference to new section 13ZNG which sets out when a police officer can restrict communication under new Division 5A. Clause 31 inserts new sections 13ZFA, 13ZFB and 13ZFC into the Terrorism (Community Protection) Act 2003. New section 13ZFA sets out a child's entitlement to contact the Commission for Children and Young People while detained under a preventative detention order. This includes being visited by the Commission for Children and Young People. 35

New section 13ZFB sets out the entitlement of a person who is not a citizen or permanent resident of Australia to contact the consular office of the country of which the person is a citizen, while detained under a preventative detention order. New section 13ZFC provides that a person being detained is entitled to contact a special counsel appointed to represent that person's interests. A special counsel may be appointed under new section 32 (see clause 71 of the Bill which inserts new Part 5 (new sections 23 to 37A) into the Terrorism (Community Protection) Act 2003). Clause 32 repeals section 13ZD(1) of the Terrorism (Community Protection) Act 2003 as the definition of family member is being relocated to section 3 of the Act (see clause 4 of the Bill). Clause 33 amends section 13ZG of the Terrorism (Community Protection) Act 2003, which sets out when contact can be monitored for a person being detained under a preventative detention order. Subclause (1) substitutes a new subsection (5) which reflects the additional purposes for which the person can communicate with their lawyer and makes it clear that any communication between the person and a lawyer for an authorised purpose, or information derived from or obtained as a result of monitoring communication, is not admissible in evidence against the person in any proceedings in a court or tribunal. Subclause (2) inserts a new subsection (7) which provides that section 13ZG does not apply to contact with a lawyer for the purpose of communication with a special counsel under section 33(1)(b) or (2)(b) which is being inserted into the Act by clause 71 of the Bill. Clause 34 amends section 13ZH(4)(b) of the Terrorism (Community Protection) Act 2003 to provide that any electronic communication may be used. Clause 35 amends section 13ZI of the Terrorism (Community Protection) Act 2003 to include references to new sections 13ZFB (contact with consular office) and 13ZNF (questioning of children). Section 13ZI provides that the entitlement to contact certain other people may be subject to a prohibited contact order. New section 13ZNF is relevant because a child's entitlement to 36

have their parent or guardian present during questioning may be affected by any prohibited contact order in relation to the person. Clause 36 amends section 13ZJ of the Terrorism (Community Protection) Act 2003, which makes it an offence for detainees to disclose certain information. Subclause (1) amends section 13ZJ(1)(d) to add contact with the Commission for Children and Young People (new section 13ZFA), contact with a consular office (new section 13ZFB) and contact with special counsel (new section 13ZFC) to the exceptions to the offence that apply to a detainee. Subclause (2) amends section 13ZJ(2)(d) to add communication by a lawyer with the Commission for Children and Young People to the exceptions that apply to a lawyer of a detainee. Subclauses (2) and (3) also add references to a counter-terrorism intelligence protection order in section 13ZJ(2)(d) (lawyer offence) and (3)(e)(i) (parent/guardian offence). Subclause (4) substitutes an updated note for the note at the foot of section 13ZJ(4). Clause 37 amends section 13ZK of the Terrorism (Community Protection) Act 2003, which prohibits questioning of a person detained under a preventative detention order. New section 13ZK(1AA) reflects that the Supreme Court can make a condition prohibiting questioning but the prohibition no longer applies as a default. This implements the recommendation of the Expert Panel (Report 1--recommendation 2). Clause 38 inserts new Division 5A of Part 2A into the Terrorism (Community Protection) Act 2003. Division 5A--Questioning New Division 5A of Part 2A is required as a result of removing the general prohibition on questioning of a person detained under a preventative detention order. This implements the Expert Panel recommendations (Report 1--recommendation 2). The provisions are consistent with Division 6 of new Part 2AA, which provides for questioning of a person detained under that Part. Subdivision 1--Preliminary New section 13ZNA provides that new Division 5A, which provides for questioning under a preventative detention order, applies if the preventative detention order is not subject to a questioning prohibition condition. 37

Subdivision 2--Authority to question New section 13ZNB sets out the purposes for which a person detained under a preventative detention order may be questioned. It is consistent with new section 13AZC. Subsection (1) sets out the matters about which a person may be questioned. Subsection (2) requires the police officer to first inform the person of their rights to remain silent, communicate with a lawyer or a consular office, and to request an interpreter. Subsection (3) requires the police officer to first inform the person of the reasons for the making of the preventative detention order. Subsection (4) requires the period of questioning to be limited to a reasonable duration. Subsection (5) requires the person to be given a continuous 8 hours of rest from questioning in any period of 24 hours of detention, as well as reasonable breaks during any period of questioning. Note that for a child in detention, the child, their parent or guardian, an independent person in attendance during questioning or their lawyer may, during questioning, request additional breaks (new section 13ZNF(6)). Subsection (6) clarifies that the limitations on questioning in this section do not restrict the questioning of a person to ensure their safety and wellbeing, or comply with a requirement in relation to their detention. New section 13ZNC imposes an obligation on a police officer to arrange for an interpreter before commencing questioning, if the officer has reasonable grounds to believe that the person is unable to communicate with reasonable fluency in the English language. New section 13ZND imposes an obligation on a police officer to not commence questioning for a reasonable time to enable the person to communicate with, or attempt to communicate, with a lawyer or the consular office of the country of which the person is a citizen. This requirement is subject to certain contact prohibitions. New section 13ZNE imposes an obligation on a police officer to allow a person in detention to communicate with their lawyer before questioning commences, and allow for the lawyer to be present during questioning and to give advice to the person. This requirement is subject to certain contact prohibitions. 38

New section 13ZNF imposes further obligations in relation to the questioning of children. New subsection (2) provides that, subject to certain other provisions, a child should not be questioned without a parent, guardian or independent person present. The police officer is required to provide the child time to communicate with the parent, guardian or independent person. New subsection (3) provides that if the child or their parent or guardian does not arrange for a lawyer to be present during the questioning, a police officer must request Victoria Legal Aid to arrange a lawyer to be present during questioning. Under new subsection (4), Victoria Legal Aid must arrange a lawyer to be present during questioning and offer to provide legal advice to the child. The VLA arranged lawyer may only be excluded from the questioning if a police officer believes that they are unreasonably interfering with the questioning. The child, parent, guardian, independent person or lawyer may request a break in the questioning if the child becomes distressed or unable to concentrate; this request must not be unreasonably refused. New section 13ZNG provides that contact entitlements under new section 13ZND, 13ZNE or 13ZNF(2) do not have to be complied with in certain circumstances. This provision is based on similar provisions relating to questioning in the Crimes Act 1958. Subdivision 3--Recording of questioning The giving of required information to a person in detention, questioning of the person and the person's responses (if any) to any questions and information provided must be recorded. With some necessary modifications, these provisions are consistent with the Crimes Act 1958 and the Crimes Act 1914 of the Commonwealth. New section 13ZNH sets out a number of definitions which are not included in section 3 because they pertain only to this Subdivision, including--  authorised person, publish, and recording, which are based on section 464JA of the Crimes Act 1958  representation, which has the same meaning as in the Evidence Act 2008. 39

New section 13ZNI provides that digital audio or audiovisual recordings must be certified as unaltered and as made in accordance with prescribed regulations. New section 13ZNJ requires all questioning and responses, and the giving of information to detained persons to be recorded. If the person being questioned is a child, this must be audiovisually recorded. If the person being questioned is an adult, this must be audiovisually recorded if practicable, or audio recorded if not. New section 13ZNK requires the police officer to give a copy of the recordings and any transcripts prepared to the detained person or the person's lawyer. This must be done as soon as practicable, at the most not later than 7 days after the recording was made. New section 13ZNL makes adverse representations inadmissible in proceedings for an offence unless a recording is available to be tendered in evidence. New subsection (2) enables a court to authorise the admission of the evidence in exceptional circumstances where justified. New section 13ZNM sets out offences for possession, disclosure, copying, tampering or publishing the recordings. The maximum penalties match the equivalent offences in section 464JA of the Crimes Act 1958. There are several exceptions for the lawful possession and use of the recordings, including for the person questioned, their lawyer, an authorised person, the recording is sealed, the recording is played before a court or tribunal, in relation to an inquest, a disciplinary action against a police officer, a disciplinary action against a lawyer, in accordance with the direction of a court, by an authorised person. New section 13ZNN permits a court to give directions that a recording can be supplied, copied, edited, erased, played or published. New section 13ZNO imposes an obligation on the Chief Commissioner of Police to keep a copy of a recording in safe custody for 7 years. A court may order that the recording be kept for a longer period. Clause 39 repeals section 13ZU of the Terrorism (Community Protection) Act 2003, which provides, for the avoidance of doubt, that legal proceedings for a remedy may be commenced in relation to a preventative detention order, prohibited 40

contact order, or treatment while detained under a preventative detention order. This provision is unnecessary as it merely states the existing law. Nothing in the Terrorism (Community Protection) Act 2003 restricts the Supreme Court's inherent jurisdiction or a person's ability to bring proceedings in relation to Part 2AA or 2A. Clause 40 inserts new Part 8 into the Terrorism (Community Protection) Act 2003, which provides for transitional provisions. Part 8--Transitional provisions New section 42 provides that authorised police officers appointed under section 13B(2) (repealed by clause 10 of this Bill), are taken to be an appointment under new section 3(2) on that commencement. This is to provide for the movement of the definition of an authorised police officer from section 13B(2) to new section 3(2). Division 2--Requirements for granting preventative detention orders or authorising special police powers Clause 41 substitutes section 13A(a) in the Terrorism (Community Protection) Act 2003, which sets out the object of Part 2A-- Preventative detention orders. The amendment substitutes the words "prevent an imminent terrorist act" for "prevent a terrorist act that is capable of being carried out, and could occur, within the next 14 days". The note below 13A is repealed to reflect the removal of the general prohibition on questioning under a preventative detention order. Clause 42 substitutes 13C(2) to amend the imminence test required to make an application for a preventative detention order for consistency with the amendment in clause 41. Clause 43 substitutes 13E(2) to amend the imminence test required to for the Supreme Court to make a preventative detention order for consistency with clauses 41 and 42. This amendment gives effect to recommendation 6 of the 2014 Victorian Review of Counter-Terrorism Legislation and recommendation 2 of Report 1 by the Expert Panel. Commonwealth and NSW preventative detention legislation adopts this new threshold test (section 105.1 of the Criminal Code Act 1995 of the 41

Commonwealth and section 26D(1) of the Terrorism (Police Powers) Act 2002 (NSW). Clause 44 amends sections 21D(1)(a) and (4)(b), which amend the imminence test required for the authorisation of special powers to prevent, or reduce the impact of, a terrorist act. This is consistent with other amendments to the imminence test in this Bill. This implements the recommendation of the 2014 Victorian Review of Counter-Terrorism Legislation, that the threshold test for special police powers under section 21D be amended (Recommendation 12), and the Expert Panel recommendation that the imminence threshold for authorising special police powers under section 21D be replaced with the Commonwealth's formulation for consistency (Report 1--recommendation 15). Division 3--Special police powers Part 3A of the Terrorism (Community Protection) Act 2003 authorises the use of special police powers in relation to a terrorist act occurring, investigation of or recovery from a terrorist act, and the protection of events or essential services, which may be subject of a terrorist act. These include powers to require a person to identify themselves, stop and search persons and vehicles, direct persons to leave or remain at a specified area, seize items and cordon-off areas. Police authorised to use these special powers may use whatever force is reasonably necessary. The amendments implement the Expert Panel recommendations for special police powers (Report 1--recommendations 13 and 15). Clause 45 amends section 3 of the Terrorism (Community Protection) Act 2003. Section 3 contains definitions for the purposes of that Act. Clause 45 inserts a definition of protective services officer, in the same terms as the Victoria Police Act 2013. This definition is required to enable protective services officers to exercise certain special powers inserted by Division 3 of Part 2 of the Bill, as well as certain existing special powers in Part 3A of the Terrorism (Community Protection) Act 2003 as recommended by the Expert Panel (Report 1-- recommendation 13). Clause 46 amends section 21D of the Terrorism (Community Protection) Act 2003. Section 21D gives the Chief Commissioner, with the written approval of the Premier, the power to give an interim authorisation for the exercise of special powers to prevent, or 42

reduce the impact of, a terrorist act. Clause 46 changes the conditions under which the special powers are authorised and extends the duration that an interim authorisation given by the Chief Commissioner may last without requiring an application to the Supreme Court. Subclause (1) substitutes "in accordance with this Division if" in section 21D(1) of the Terrorism (Community Protection) Act 2003 for ", with the written approval of the Premier, in accordance with this Division if the Chief Commissioner" to provide that the power of the Chief Commissioner to give an interim authorisation for the exercise of special powers must be in accordance with Division 2 of Part 3A of the Terrorism (Community Protection) Act 2003 in accordance with the conditions set out in section 21D(1). The amendment permits the Chief Commissioner to give an interim authorisation without the written approval of the Premier in the circumstances set out in the new section 21D(1A), inserted by subclause (5). Subclause (2) substitutes "the Chief Commissioner is satisfied" for "is satisfied" in section 21D(1)(a) of the Terrorism (Community Protection) Act 2003 as a consequence of the removal of the reference to the Chief Commissioner in section 21D(1) by subclause (1). Subclause (3)(a) substitutes "the Chief Commissioner is satisfied" for "is satisfied" in section 21D(1)(b) of the Terrorism (Community Protection) Act 2003 as a consequence of the removal of the reference to the Chief Commissioner in section 21D(1) by subclause (1). Subclause (3)(b) substitutes "property." for "property; and" in section 21D(1)(b). This change is required as a consequence of the insertion of a new section 21D(1)(c) by subclause (4). Subclause (4) inserts a new section 21D(1)(c) after section 21D(1)(b) of the Terrorism (Community Protection) Act 2003. The new section 21D(1)(c) provides that one of the conditions under which the Chief Commissioner may give an interim authorisation for the exercise of special powers is if, subject to subsection (1A), the Premier has approved in writing the giving of the authorisation. Subclause (5) inserts a new section after section 21D(1) of the Terrorism (Community Protection) Act 2003. The new section 21D(1A) provides alternative conditions in paragraphs (a) 43

or (b) under which the Chief Commissioner may give an interim authorisation to exercise special powers without the written approval of the Premier. New paragraph (a) allows the Chief Commissioner to give an interim authorisation without the written approval of the Premier if the Premier is not reasonably able to be contacted at the time the interim authorisation is given and the Premier has not delegated the power to approve an interim authorisation to a Minister pursuant to section 21IB. New paragraph (b) applies if the Premier has delegated that power. Under new paragraph (b)(i), the Chief Commissioner may give an interim authorisation without the written approval of the Premier if the Minister to whom the power has been delegated is not reasonably able to be contacted at the time the interim authorisation is given. In addition, new paragraph (b)(ii) requires that the Premier is also not reasonably able to be contacted at the time it is given. Subclause (6) substitutes the term "48" for "24" in section 21D(2) of the Terrorism (Community Protection) Act 2003. Section 21D(2) requires the Chief Commissioner, if he or she believes that an authorisation should have effect for a period greater than 24 hours in duration, to make an application to the Supreme Court for an authorisation under section 21D as soon as practicable after the giving of an interim authorisation. Section 21D(2), as amended by subclause (6), extends the duration of an interim authorisation given by the Chief Commissioner without requiring an application to the Supreme Court. Under the amended section 21D(2), if the Chief Commissioner believes that an authorisation should have effect for a longer period than 48 hours, he or she must make an application to the Supreme Court for an authorisation under section 21D as soon as practicable after the giving of an interim authorisation. Clause 47 amends section 21E of the Terrorism (Community Protection) Act 2003. Section 21E gives the Chief Commissioner, with the written approval of the Premier, the power to give an interim authorisation for the exercise of special powers relating to the investigation of, or recovery from, a terrorist act. Clause 47 changes the conditions under which the special powers may be authorised and extends the duration that an interim authorisation given by the Chief Commissioner may last without requiring an application to the Supreme Court. 44

Subclause (1) substitutes "in accordance with this Division if" in section 21E(1) of the Terrorism (Community Protection) Act 2003 for ", with the written approval of the Premier, in accordance with this Division if the Chief Commissioner" to provide that the power of the Chief Commissioner to give an interim authorisation for the exercise of special powers must be in accordance with Division 2 of Part 3A of the Terrorism (Community Protection) Act 2003 on the conditions set out in section 21E(1). This change is a consequence of the restructuring of section 21E to permit the Chief Commissioner to give an interim authorisation without the written approval of the Premier in the circumstances set out in the new section 21E(1A) inserted by subclause (5). Subclause (2) substitutes "the Chief Commissioner is satisfied" for "is satisfied" in section 21E(1)(a) of the Terrorism (Community Protection) Act 2003 as a consequence of the removal of the reference to the Chief Commissioner in section 21E(1) by subclause (1). Subclause (3)(a) substitutes "the Chief Commissioner is satisfied" for "is satisfied" in section 21E(1)(b) of the Terrorism (Community Protection) Act 2003 as a consequence of the removal of the reference to the Chief Commissioner in section 21E(1) by subclause (1). Subclause (3)(b) substitutes "act; and" for "act." in section 21E(1)(b). This change is required as a consequence of the insertion of a new section 21E(1)(c) by subclause (4). Subclause (4) inserts a new section 21E(1)(c) after section 21E(1)(b) of the Terrorism (Community Protection) Act 2003. The new section 21E(1)(c) provides that one of the conditions under which the Chief Commissioner may give interim authorisation for the exercise of special powers is if, subject to subsection (1A), the Premier has approved in writing the giving of the authorisation. Subclause (5) inserts a new section 21E(1A) after section 21E(1) of the Terrorism (Community Protection) Act 2003. The new section 21E(1A) provides alternative conditions in paragraphs (a) or (b) under which the Chief Commissioner may give an interim authorisation to exercise special powers without the written approval of the Premier. New paragraph (a) allows the Chief Commissioner to give an interim authorisation without the written approval of the Premier if the Premier is not reasonably 45

able to be contacted at the time the interim authorisation is given and the Premier has not delegated the power to approve an interim authorisation to a Minister pursuant to section 21IB. New paragraph (b) applies if the Premier has delegated that power. Under new paragraph (b)(i), the Chief Commissioner may give an interim authorisation without the written approval of the Premier if the Premier if the Minister to whom the power has been delegated must not reasonably be able to be contacted at the time the interim authorisation is given. In addition to new paragraph (b)(i), new paragraph (b)(ii) provides that the Premier must also not be reasonably able to be contacted at the time it is given. Subclause (6) substitutes "48" for "24" in section 21E(2) of the Terrorism (Community Protection) Act 2003. Section 21E(2) requires the Chief Commissioner, if he or she believes that an authorisation should have effect for a period greater than 24 hours in duration, to make an application to the Supreme Court for an authorisation under section 21E as soon as practicable after the giving of an interim authorisation. Section 21E(2), as amended by subclause (6), extends the duration of an interim authorisation given by the Chief Commissioner without requiring an application to the Supreme Court. Under the amended section 21E(2), if the Chief Commissioner believes that an authorisation should have effect for a longer period than 48 hours, he or she must make an application to the Supreme Court for an authorisation under section 21E as soon as practicable after the giving of an interim authorisation. Clause 48 inserts a new section 21H(3A) after section 21H(3) of the Terrorism (Community Protection) Act 2003. Section 21H prescribes how the Chief Commissioner must give an interim authorisation. The new section 21H(3A) provides that, if the Chief Commissioner gives an interim authorisation without the approval of the Premier in accordance with section 21D(1A) or section 21E(1A), the Chief Commissioner must, as soon as practicable, give a copy of the authorisation to the Premier and, if the Premier has delegated the power to approve an interim authorisation to a Minister, the relevant Minister. 46

Clause 49 amends section 21I of the Terrorism (Community Protection) Act 2003. Section 21I relates to the duration of an authorisation. Subclause (1) substitutes "48" for "24" in section 21I(2)(a) of the Terrorism (Community Protection) Act 2003 to make the duration of an interim authorisation given by the Chief Commissioner 48 hours instead of 24 hours. This change also makes the duration of an interim authorisation specified in section 21I consistent with the period specified in the new section 21D(2), as amended by clause 46, and the new section 21E(2), as amended by clause 47. Subclause (2) inserts 4 new subsections after section 21I(4) of the Terrorism (Community Protection) Act 2003 that provide for the revocation of an interim authorisation given by the Chief Commissioner. New section 21I(4A) enables the Premier to revoke at any time an interim authorisation given by the Chief Commissioner under the new section 21D(1A) or section 21E(1A) if the Premier is not satisfied of the basis for authorising special powers to prevent, or reduce the impact of, a terrorist act under section 21D(1)(a) and (b) or the basis for authorising special powers relating to the investigation of, or recovery from, a terrorist act under section 21E(1)(a) and (b). New section 21I(4B) applies where the Premier has delegated the power to approve an interim authorisation to a Minister. It enables that Minister to revoke at any time an interim authorisation given by the Chief Commissioner under new sections 21D(1A) or 21E(1A) if the Minister is not satisfied of the basis for authorising special powers to prevent, or reduce the impact of, a terrorist act under section 21D(1)(a) and (b) or the basis for authorising special powers relating to the investigation of, or recovery from, a terrorist act under section 21E(1)(a) and (b). New section 21I(4C) requires that, if the Premier or Minister revokes an interim authorisation, the Premier or Minister (as the case requires) must notify the Chief Commissioner in writing. New section 21I(4D) states that the revocation of an interim authorisation under subsection (4A) or (4B) takes effect when the Chief Commissioner receives the notification given under subsection (4C). 47

Clause 50 inserts new sections 21IA and 21IB after section 21I of the Terrorism (Community Protection) Act 2003. New section 21IA relates to the variation of an interim authorisation. Subsection (1) enables the Premier, or where the power to approve an interim authorisation has been delegated to a Minister, that Minister, to vary at any time an interim authorisation given by the Chief Commissioner under new sections 21D(1A) or 21E(1A). Subsection (2) provides for notification of the variation to the Chief Commissioner. It requires the Premier or Minister (as the case requires) to notify the Chief Commissioner in writing of any variation of an interim authorisation. Subsection (3) states that the variation of an interim authorisation under subsection (1) takes effect when the Chief Commissioner receives the notification given under subsection (2). For certainty, subsection (4) provides that the variation of an interim authorisation does not affect anything lawfully done in reliance on the interim authorisation before it was varied. New section 21IB enables the Premier to delegate the power to approve an interim authorisation. Subsection (1) enables the Premier to delegate by instrument the power to approve an interim authorisation under section 21D or 21E to a Minister. Subsection (2) requires the Premier to give the Chief Commissioner a copy of the delegation. Clause 51 extends the exercise of special powers available to police officers under section 21K of the Terrorism (Community Protection) Act 2003 to protective services officers. Subclause (1) adds "and protective services officers" to the heading to section 21K. This change clarifies that protective services officers are to also exercise special powers exercised by police officers. Subclauses (2) and (3) insert "or protective services officer" after the term "police officer" wherever the latter term appears in section 21K(1) and section 21K(2). The amended section 21K(1) provides that the special powers conferred by Part 3A of the Terrorism (Community Protection) Act 2003 may be exercised by any police officer or protective services officer, or subject to subsection (3), by any person assisting the police officer or protective services officer in that exercise and acting under the direction and control of the police officer or protective services officer. The amended section 21K(2) enables a police officer or 48

a protective services officer to exercise the special powers under Part 3A of the Terrorism (Community Protection) Act 2003 whether or not he or she has been provided with a copy of the authorisation. Subclause (4) amends section 21K(3) of the Terrorism (Community Protection) Act 2003 to clarify that a person assisting a police officer or protective services officer is not authorised to conduct a strip search. Clause 52 amends section 21O(1), (4) and (5) of the Terrorism (Community Protection) Act 2003 to enable protective services officers to exercise the same powers as police officers under section 21O by adding "or protective services officer" after "police officer" wherever the latter term occurs. Section 21O provides a power to require the disclosure of a person's identity, including requesting proof of identity, and to detain a person for so long as is reasonably necessary for the purposes of section 21O. The amended section 21O(1) enables a police officer or a protective services officer to request a person whose identity is unknown to disclose his or her identity if the police officer or protective services officer suspects on reasonable grounds that the person is the target of an authorisation under section 21O(1) or the person is found in the company of the target of the authorisation or the person is found in or on a vehicle reasonably suspected to be the target of an authorisation or the person is found in an area that is the target of an authorisation. The amended section 21O(4) enables a police officer or a protective services officer to request that a person requested to disclose his or her identity provide proof of his or her identity. The amended section 21O(5) enables a police officer or a protective services officer to detain a person for so long as is reasonably necessary for the purpose of section 21O. Clause 53 amends section 21P(1), (2), (4) and (5) of the Terrorism (Community Protection) Act 2003 to enable protective services officers to exercise the same powers as police officers under section 21P by adding "or protective services officer" after "police officer" wherever the latter term occurs. Section 21P relates to the power to search persons without a warrant. 49

The amended section 21P(1) enables a police officer or a protective services officer, without a warrant, to stop and search a person, and anything in the possession of or under the control of the person, if the police officer or protective services officer suspects on reasonable grounds that the person is the target of an authorisation (or the person is found in the company of the target of the authorisation); or the person is in or on a vehicle that the police officer or protective services officer suspects on reasonable grounds is the target of an authorisation; or the person is in an area that is the target of an authorisation. The amended section 21P(2) enables a police officer or a protective services officer, in conducting a search of anything in the possession of, or under the control of, a person, to request the production of any bag or other receptacle and search through its contents or turn out the person's pockets and search them. The amended section 21P(4) enables a police officer or a protective services officer to detain a person for so long as is reasonably necessary for the purpose of section 21P. The amended section 21P(5) enables a police officer or a protective services officer to direct a person or group of people not to enter or to leave or not to leave an area that is the target of an authorisation. Clause 54 amends section 21Q(1), (2) and (3) of the Terrorism (Community Protection) Act 2003 to enable protective services officers to exercise the same powers as police officers under section 21Q by adding "or protective services officer" after "police officer" wherever the latter term occurs. Section 21Q relates to the power to search vehicles. The amended section 21Q(1) enables a police officer or a protective services officer without a warrant, to stop and search a vehicle if the police officer or protective services officer suspects on reasonable grounds that the person is the target of an authorisation (or the person is found in the company of the target of the authorisation) or the person is found in a vehicle in an area that is the target of an authorisation. The amended section 21Q(2) enables a police officer or a protective services officer to detain a person for so long as is reasonably necessary for the purpose of section 21Q. 50

The amended section 21Q(3) enables a police officer or a protective services officer to direct the person driving or in charge of a vehicle searched under section 21Q to remove it from, or keep it, an area that is the target of an authorisation. Clause 55 amends section 21R(1) and (2) of the Terrorism (Community Protection) Act 2003 to enable protective services officers to exercise the same power as police officers under section 21R by adding "or protective services officer" after "police officer". Section 21R relates to the power to move vehicles. Subclause (1) amends section 21R(1) to enable a police officer or a protective services officer to move, or cause to be moved, a vehicle parked or left standing in an area that is the target of an authorisation if the vehicle is believed to be a danger to other vehicles or persons in that area, is causing or likely to cause traffic congestion in that area, or is hindering the exercise of special police powers in that area. Subclause (2) amends section 21R(2), which prescribes how a police officer or a protective services officer may exercise a power under section 21R. Under the amended section 21R(2), a police officer or protective services officer may enter the vehicle using, if necessary, reasonable force, in order to move it and move, or cause it to be moved, to the nearest convenient place. Clause 56 amends section 21S(1), (2) and (3) of the Terrorism (Community Protection) Act 2003 to enable protective services officers to exercise the same power as police officers under section 21S. Section 21S relates to the power to enter and search premises. Subclause (1) amends section 21S(1) and (3) by adding "or protective services officer" after "police officer" to enable both police officers and protective services officers, without a warrant, to enter and search premises if one of the conditions in subsection (1) are met. Subclause (2) substitutes, for the requirement in section 21S(2) that the police officer must do as little damage as possible, the requirement that the police officer or protective services officer must do, or ensure that any person assisting the police officer or protective services officer does, as little damage as reasonably possible. 51

Clause 57 inserts new sections 21SA, 21SB and 21SC after section 21S of the Terrorism (Community Protection) Act 2003. New section 21SA creates an explicit power to take control of an affected area and make directions if it is necessary for the purposes of an authorisation. New section 21SA relates to powers in respect of premises within an area that is the target of an authorisation. Section 21SA(1) limits the application of the powers to the premises within an area that is the target of an authorisation. Section 21SA(2) confers a number of powers in paragraphs (a) to (f) on a police officer or protective services officer if premises are within an area that is the target of an authorisation and the police officer or protective services officer considers on reasonable grounds that the use of the premises is necessary for the purposes of the authorisation. They are the powers to-- (a) enter the premises; (b) direct a person to leave or not to leave a premises or part of a premises; (c) exclude a person from the premises or part of a premises; (d) remove or cause to be removed from the premises or part of the premises a person who does not comply with a direction to leave the premises or who has been excluded from the premises; (e) disconnect or shut off electricity, gas, water or other services at the premises; (f) direct a person at the premises to disconnect or shut off electricity, gas, water or other services. New section 21SA(3) limits the exercise of the powers set out in new subsection (2) by requiring that the police officer or protective services officer must do as little damage as reasonably possible and must ensure that a person assisting the police officer or protective services officer does not do any more damage than is reasonably necessary. 52

New section 21SA(4) enables the exercise of the powers set out in new subsection (2) in respect of the whole of a building or vehicle if only part of a building or vehicle is within the area that is the target of the authorisation. New section 21SB relates to powers in respect of things within an area that is the target of an authorisation. New section 21SB(1) limits the application of the powers to a thing that is within an area that is the target of an authorisation or a thing that is in a building or vehicle any part of which is within an area that is the target of an authorisation. New section 21SB(2) confers a number of powers in paragraphs (a) to (c) on a police officer or protective services officer if the police officer or protective services officer considers on reasonable grounds that the use of the thing is necessary for the purposes of the authorisation. They are the powers to-- (a) direct an owner of the thing, a person apparently in control of the thing or, if the thing is located at a premises, any other person at the premises, to place the thing in the control of a police officer or protective services officer, or to make use of the thing as specified by a police officer or protective services officer; (b) without a warrant take possession of the thing; (c) make use of the thing. Paragraph (a) may include, for example, directing a person to operate machinery or equipment at the premises, IT systems or accessing locked and secured parts of buildings. New section 21SB(3) limits the exercise of the powers set out in new subsection (2) by requiring that the police officer or protective services officer must do as little damage as reasonably possible and must ensure that a person assisting the police officer or protective services officer does not do any more damage than is reasonably necessary. New section 21SC relates to compensation for loss or damage resulting from the exercise of a power under new section 21SA or 21SB. New section 21SC(1) enables a person who has suffered economic loss or damage to the person's property (real or personal) to apply to the Minister for compensation. New section 21SC(2) requires the Minister to pay compensation 53

if the Minister is satisfied that the person has suffered loss or damage of the kind referred to in subsection (1) and that loss or damage is a result of the exercise of a power under section 21SA or 21SB. New section 21SC(3) enables a person who applied for compensation under subsection (1) to apply to the Victorian Civil and Administrative Tribunal for the review of a decision made by the Minister under subsection (2). Clause 58 amends section 21T(1) and (3) of the Terrorism (Community Protection) Act 2003 to enable protective services officers to exercise the same power as police officers under section 21T by adding "or protective services officer" after "police officer". Section 21T relates to the power to place a cordon around the target area. Clause 59 amends section 21U(1) and (3) of the Terrorism (Community Protection) Act 2003 to enable protective services officers to exercise the same power as police officers under section 21U by adding "or protective services officer" after "police officer". Section 21U relates to the power to seize and detain things. Clause 60 amends section 21V of the Terrorism (Community Protection) Act 2003 to make it lawful for protective services officers, in addition to police officers, to use such force as is reasonably necessary when exercising a power under Division 3 of Part 3A of the Terrorism (Community Protection) Act 2003. Clause 61 amends section 21W(a) and (b) of the Terrorism (Community Protection) Act 2003 to extend the protection given to police officers under section 21W to protective services officers. Section 21W makes it an offence to obstruct or hinder search or other powers under Division 3 of Part 3A of the Terrorism (Community Protection) Act 2003. Clause 62 amends section 21X(1), of the Terrorism (Community Protection) Act 2003 to extend its application to protective services officers in addition to police officers. Section 21X relates to the requirement to supply a police officer's details and other information. Clause 63 amends Schedule 1 of the Terrorism (Community Protection) Act 2003 to extend its application to protective services officers in addition to police officers. Schedule 1, as amended, applies to personal searches carried out by a police officer or protection 54

services officer under Part 3A of the Terrorism (Community Protection) Act 2003 and provides for how such searches are to be conducted. Division 4--Protection of counter-terrorism intelligence The creation of a framework for the protection of counter-terrorism intelligence implements the Expert Panel recommendation (Report 1-- recommendation 16). Clause 64 inserts new definitions and repeals a definition in section 3 of the Terrorism (Community Protection) Act 2003. Paragraph (a) inserts the following new definitions into section 3-- counter-terrorism intelligence, which is defined to mean any information, document or other thing relating to a terrorist act or suspected terrorist act in Victoria or elsewhere, the disclosure of which could reasonably be expected to-- (a) prejudice a criminal investigation, including by revealing intelligence-gathering methodologies, investigative techniques or technologies, or covert practices; or (b) enable the discovery of the existence or identity of a confidential source of information relevant to law enforcement; or (c) endanger a person's life or physical safety; or (d) threaten significant damage to infrastructure or other property; or (e) prejudice national security; counter-terrorism intelligence protection order, which is defined as having the meaning given in section 25(1) of the Terrorism (Community Protection) Act 2003 (which is inserted by clause 71 of the Bill); protected counter-terrorism intelligence, which is defined as counter-terrorism intelligence that is the subject of a counter-terrorism intelligence protection order; 55

protection application, which is defined as an application under section 25 of the Terrorism (Community Protection) Act 2003 for a counter-terrorism intelligence protection order (section 25 is inserted by clause 71 of the Bill); substantive application, which is defined to mean an application for-- (a) a preventative detention order; or (b) an extension of a preventative detention order; or (c) a revocation or variation of a preventative detention order; (d) a prohibited contact order; or (e) a revocation or variation of a prohibited contact order. Paragraph (b) repeals the definition of counter-terrorism information in section 3 of the Terrorism (Community Protection) Act 2003. The definition (information relating to covert methods of investigation of a terrorist act or suspected terrorist act) was used in the previous general protection of counter-terrorism provided by section 23. Section 23 is substituted by clause 71 of this Bill, and the definition is no longer required. Clause 65 amends section 4C of the Terrorism (Community Protection) Act 2003 to insert a reference in that provision to a counter- terrorism intelligence protection order. The amendment means that Part 1A of the Terrorism (Community Protection) Act 2003 will apply if a person is required by that Act to give notice to a PIM of an application for a counter-terrorism intelligence protection order. Clause 66 amends section 13E of the Terrorism (Community Protection) Act 2003 to clarify the power in section 13E(1) for the Supreme Court, on an application for a preventative detention order, to make a preventative detention order if satisfied on reasonable grounds as to the matters set out in section 13E(1). 56

The amendment inserts new section 13E(1B), which provides that the Supreme Court may decide that it is satisfied as required by section 13E(1) only if it is satisfied by acceptable, cogent evidence that is of sufficient weight to justify making a preventative detention order. Clause 67 amends section 13I of the Terrorism (Community Protection) Act 2003 to clarify the power in section 13I(6) for the Supreme Court, on an application for the extension or further extension of a preventative detention order, to extend or further extend the period of the order if satisfied that detaining the person for the extended period is reasonably necessary for the purpose for which the order was made. The amendment inserts new section 13I(6A), which provides that the Supreme Court may decide that it is satisfied as required by section 13I(6) only if it is satisfied by acceptable, cogent evidence that is of sufficient weight to justify the extension or further extension. Clause 68 amends section 13KA of the Terrorism (Community Protection) Act 2003 to clarify the power in section 13KA(2) for the Supreme Court to make a prohibited contact order in relation to a person's detention under a preventative detention order only if the court is satisfied as required under section 13KA(4). Section 13KA(4) sets out those matters in relation to which the court must be satisfied before a prohibited contact order may be made. The amendment inserts new subsection (2A), which provides that the Supreme Court may decide that it is satisfied as set out in section 13KA(4) only if it is satisfied by acceptable, cogent evidence that is of sufficient weight to justify making a prohibited contact order. Clause 69 amends section 13O of the Terrorism (Community Protection) Act 2003 to clarify the requirement in section 13O(3)(b) for the Supreme Court to be satisfied that it is appropriate that a preventative detention order be revoked or varied and the requirement in section 13O(7)(b) for the Supreme Court to be satisfied that it is appropriate that a prohibited contact order be revoked or varied. The amendment inserts new subsection (7C), which provides that the Supreme Court may decide that it is satisfied as required by sections 13O(3)(b) or (7)(b) only if it is satisfied by acceptable, cogent evidence that is of sufficient weight to justify revoking or varying the order. 57

Clause 70 repeals section 13ZP(3) of the Terrorism (Community Protection) Act 2003. As the amendments create a standalone counter-terrorism intelligence protection framework the application of the National Security Information (Criminal and Civil Proceedings) Act 2004 of the Commonwealth is no longer necessary. Clause 71 substitutes Part 5 of the Terrorism (Community Protection) Act 2003 to provide for the protection of counter-terrorism intelligence. Division 1--General protection in legal proceedings Division 1 of substituted Part 5 contains sections 23 and 24 and provides for the general protection of counter-terrorism intelligence in legal proceedings. Substituted section 23(1) confers on courts a power to excuse a person from a requirement to disclose any information, document or thing if satisfied that--  the information, document or thing is counter-terrorism intelligence; and  the public interest in preserving secrecy or confidentiality outweighs the public interest in disclosure. Substituted section 23(2) sets out the matters that must be considered by a court when considering whether to excuse a person from a requirement to disclose any information, document or thing. Without limiting the matters the court may consider, it must consider the following--  the importance of the information, document or thing in the legal proceeding; and  if the legal proceeding is a criminal appeal proceeding, whether the party seeking disclosure is the accused or the prosecutor; and  if the legal proceeding is a criminal proceeding, including an application for leave to appeal, whether the party seeking disclosure was the accused or the prosecutor in the judgment or order from which the appeal is brought; and 58

 the nature of the offence, cause of action or defence to which the information, document or thing relates, and the nature of the subject matter of the proceeding; and  the likely effect of disclosure and the means available to limit its publication; and  whether the substance of the information, document or thing has already been disclosed; and  if the proceeding is a criminal proceeding and the party seeking disclosure is the accused, whether the order is to be made subject to the condition that the prosecution be stayed. Substituted section 23(3) provides that in deciding whether to excuse a person under section 23 from a requirement to disclose, the court may inform itself in any way it thinks fit. Substituted section 23(2) and (3) reproduce, in substance, current section 23(2) and (3) of the Terrorism (Community Protection) Act 2003 with modifications for counter terrorism intelligence. Substituted section 23(4) defines certain terms for the purposes of substituted section 23. court is defined to have the same meaning as in the Evidence (Miscellaneous Provisions) Act 1958. disclosure is defined to include disclosure, whether by order, subpoena or otherwise, by the--  inspection, production or discovery of documents; and  giving of evidence; and  answering of interrogatories; and  provision of particulars. legal proceeding is defined to have the same meaning as in the Evidence (Miscellaneous Provisions) Act 1958. Substituted section 24 (which reproduces the substance of current section 24) provides that if a question arises under substituted section 23 in relation to a document, the court may order the production of the document and may inspect it for the purpose of determining the question. 59

Division 2--Protection in applications under this Act Division 2 of substituted Part 5 provides for the protection of counter-terrorism intelligence in applications under the Terrorism (Community Protection) Act 2003. It contains new sections 25 to 29. New section 25(1) provides that if an authorised police officer has made a substantive application on or after the commencement day, an authorised police officer may apply to the Supreme Court for an order--a counter-terrorism protection order-- in relation to any information, document or other thing related to the substantive application that the officer making the application believes, on reasonable grounds, is counter-terrorism intelligence. New section 25(2) sets out the requirements for a protection application. An application must--  be in writing; and  state the grounds on which the order is sought; and  be accompanied by an affidavit that addresses the grounds on which the order is sought. New section 25(3) provides for the definition of commencement day. New section 26 imposes a requirement on an applicant for a counter-terrorism intelligence protection order to notify the PIM of the protection application in accordance with the regulations under the Public Interest Monitor Act 2011. New section 27 provides for matters concerning the determination of a protection application by the Supreme Court. New section 27(1) provides that after hearing a protection application, the Supreme Court may make a counter-terrorism intelligence protection order in respect of all or any part of the relevant information, document or thing if the court is satisfied that--  the information, document or thing is counter-terrorism intelligence; and  the reasons for maintaining the confidentiality of the counter-terrorism intelligence outweigh any prejudice or unfairness to the subject of the substantive application. 60

If the Supreme Court makes a counter-terrorism intelligence protection order, new section 27(2) imposes a requirement on an applicant in relation to a substantive application to serve on the subject of that application, or a representative of the subject, a copy of the order and a summary of the protected counter-terrorism intelligence to the extent possible without compromising the reasons for which the intelligence is protected. New section 27(3) provides that if the Supreme Court does not make a counter-terrorism intelligence protection order--  the applicant in the substantive application is not obliged to adduce that information, document or thing in evidence in the proceeding in relation to the substantive application; and  the applicant in the substantive application may withdraw the substantive application. New section 27(4) confers on the applicant in the substantive application a power to withdraw that application if, during proceedings in relation to it, the Supreme Court makes an order for discovery of all or any part of the information, document or thing the subject of a protection application. New section 28 provides for the Supreme Court to dispense with a hearing in relation to a protection application if the parties to that application consent. New section 29 clarifies that the making of a counter-terrorism intelligence protection order is not determinative of the admissibility of the protected counter-terrorism intelligence in evidence in relation to the proceeding on the substantive application. Division 3--Procedural requirements in protection applications and substantive applications involving protected counter-terrorism intelligence Division 3 of substituted Part 5 contains new sections 30 to 34 and provides for procedural requirements in relation to protection applications and substantive applications involving protected counter-terrorism intelligence. New section 30 provides for the application of Division 3. New section 30(1) provides that Division 3 applies to a proceeding on a protection application and to any part of a 61

proceeding on a substantive application in which protected counter-terrorism intelligence is sought to be admitted, or is adduced, in evidence. New section 30(2) defines the term relevant part for the purposes of new Division 3. It provides that the term means any part of a proceeding on a substantive application in which protected counter-terrorism intelligence is sought to be admitted, or is adduced, in evidence. New section 31 makes provision for closed court hearings in relation to a protection application or the relevant part of a proceeding on a substantive application. New section 31(1) provides that unless the Supreme Court orders otherwise, a protection application or the relevant part of a proceeding on a substantive application must be heard in closed court. New section 31(2) provides that the Supreme Court may make an order under new section 31(1) if it considers it appropriate to do so. New section 31(3) provides for the only persons who may be present if a protection application or the relevant part of a proceeding on a substantive application is heard in closed court. The persons who may be present are--  the authorised police officer who made the protected application or the substantive application, as applicable; and  any lawyers representing the authorised police officer; and  a special counsel appointed under new section 32; and  any witnesses who may be called to give evidence; and  the presiding judge and any court staff necessary for the hearing; and  the PIM. New sections 31(4), (5) and (6) make provision for a notice to be posted if a protection application or the relevant part of a substantive application is heard in closed court. In those circumstances, new section 31(4) provides that the Supreme Court-- 62

 must cause a notice to be posted on a door of the court containing the matters set out in new section 31(5) and ensure that the notice remains posted at all times the hearing is being held in closed court; and  may cause a copy of the notice to be posted in another conspicuous place where notices are generally posted at the court. New section 31(5) provides that the notice must state that the hearing is being held in closed court, who may be present, and that it is an offence for anyone else to enter or attempt to enter the place where the hearing is being held. If a notice is posted, new section 31(6) provides that the Supreme Court must confirm certain matters relating to that notice on the transcript of the hearing. These matters are that a notice was posted and remained posted at all times that the hearing was held in closed court and the content of the notice. New section 31(7) provides that if the Supreme Court makes an order under new section 31(1) that a protection application or the relevant part of a proceeding on a substantive application should not be heard in closed court, the authorised police officer who made the application may withdraw the application. New section 32 provides for the appointment of special counsel on the hearing of a protection application or the relevant part of a proceeding on a substantive application. New section 32(1) provides that the Supreme Court may appoint a suitably qualified person as special counsel to represent the interests of the subject of the application at the hearing of that application. New section 32(2) provides for who is suitably qualified for the purposes of new section 32(1). A person is suitably qualified for appointment as special counsel if--  the person is a barrister within the meaning of the Legal Profession Uniform Law (Victoria); and  in the opinion of the Supreme Court, the person has the appropriate skills and ability to represent the interests of the subject of the substantive application; and  the person has the security clearance determined by the Supreme Court to be appropriate in the circumstances. 63

New section 32(3) provides that the Supreme Court may appoint another suitably qualified person as special counsel for the hearing of the relevant part of the substantive application if a person who has been appointed is unable to act or for any other reason the Supreme Court considers it appropriate. New section 33 sets out details of the role of special counsel, including in relation to relevant information, which is defined in new section 33(8) to mean any information, or the original or a copy of any document or other thing, that is the subject of a protection application. New section 33(1)(a) provides that if a special counsel is appointed under new section 32(1), then before the hearing of the protection application, the applicant must serve on the special counsel--  a summary of the grounds on which the protection application and the substantive application are made and of the evidence on which the applicant seeks to rely to the extent possible without revealing any relevant information; and  after the special counsel has had an opportunity to communicate with the subject of the substantive application, or a representative of the subject, a copy of the protection application and the relevant information. New section 33(1)(b) provides for the circumstances in which special counsel may communicate with the subject of the substantive application, or a representative of the subject, before obtaining any relevant information. New section 33(1)(c) provides that after receiving any relevant information, the special counsel must not communicate with the subject of the substantive application, or a representative of the subject. New section 33(2)(a) provides that if a special counsel is appointed under section 32(3), then before the hearing of the relevant part of the proceeding on the substantive application, the applicant must serve on the special counsel--  a summary of the grounds on which the protection application and the substantive application were made and of the evidence on which the applicant seeks to 64

rely to the extent possible without revealing any protected counter-terrorism intelligence; and  a copy of the protected counter-terrorism intelligence, after the special counsel has had an opportunity to communicate with the subject of the substantive application, or a representative of the subject. New section 33(2)(b) provides for the circumstances in which special counsel may communicate with the subject of the substantive application, or a representative of the subject, before obtaining any protected counter-terrorism intelligence. New section 33(2)(c) provides that after receiving any protected counter-terrorism intelligence, the special counsel must not communicate with the subject of the substantive application, or a representative of the subject. New section 33(3) provides that a special counsel appointed under new section 32--  must not perform that role in a manner that compromises the confidentiality of all or any part of the relevant information or the protected counter-terrorism intelligence (as the case requires); and  does not incur any liability to the subject of the substantive application in respect of anything done or omitted to be done by the special counsel in performing that role. New section 33(4) provides that legal professional privilege or client legal privilege applies to a special counsel in the same way as it would apply to a communication between a lawyer acting for the subject and the subject. New section 33(5) confers on the Supreme Court a power to direct that a special counsel appointed under new section 32 may be present as an observer at any hearing of the substantive application other than the hearing of the relevant part of that application. 65

New section 33(6) requires an applicant for a counter-terrorism protection order to fully disclose to a special counsel all matters of which the applicant is aware that are adverse to the protection application. New section 33(7) makes it an offence to knowingly or recklessly fail to comply with the duty of full disclosure set out in subsection (6). New section 34 provides for limited circumstances in which the Supreme Court may adjourn a proceeding on a protection application or the relevant part of a substantive application to allow a special counsel appointed under new section 32 to communicate with the subject of the application. Division 4--Offences Division 4 of substituted Part 5 contains new sections 35, 36, 37 and 37A, and creates new offences relating to entering a closed court, publishing a report of a hearing of a protection application or the relevant part of a proceeding on a substantive application, and the disclosure, receipt or solicitation of protected counter- terrorism intelligence and other confidential information. If a hearing is being held in closed court under new section 31, new section 35(1) makes it an offence for a person, other than a person who is permitted to be in a closed court as provided for in new section 31(3), to enter the place where that hearing is being held if the person knows or is reckless as to the fact that the hearing is being held in closed court under new section 31. The penalty is level 6 imprisonment (5 years maximum) or a level 6 fine (600 penalty units), or both. New section 35(2) provides that if a person is charged with an offence under new section 35(1) and the prosecution proves that a notice under new section 31(4)(a) was posted at the time of the alleged offence, the person is presumed to have known, or to have been reckless as to the fact, that the hearing was being held in closed court unless the person presents or points to evidence that the person did not know and was not reckless as to that fact. New section 36(1) makes it an offence for a person to publish a report of a hearing of a protection application or the relevant part of a proceeding on a substantive application or any information derived from such a hearing other than in accordance with an order by the Supreme Court. The penalty for a natural person 66

is level 6 imprisonment (5 years maximum) or a level 6 fine (600 penalty units maximum), or both. The penalty for a body corporate is a level 2 fine (3000 penalty units maximum). New section 36(2) confers a power on the Supreme Court to make an order authorising the publication of a report of a hearing of a protection application or the relevant part of a proceeding on a substantive application or any information derived from such a hearing. New section 36(3) clarifies that a relevant part for the purposes of section 36 has the meaning provided for in new section 30(2). New section 37(1) makes it an offence for a person to disclose, receive or solicit any information, document or other thing if the person knows or is reckless as to the fact that the information, document or other thing is protected counter-terrorism intelligence. The penalty for a natural person is level 6 imprisonment (5 years maximum) or a level 6 fine (600 penalty units maximum), or both. The penalty for a body corporate is a level 2 fine (3000 penalty units maximum). New section 37(2) provides for circumstances in which a person does not commit an offence under new section 37(1). New section 37(3) provides, further, that a person does not commit an offence under new section 37(1) if--  the person presents or points to evidence that suggests a reasonable possibility that a circumstance referred to in new section 37(2) existed at the time of the alleged commission of the offence; and  the contrary is not proved (beyond reasonable doubt) by the prosecution. New section 37A makes it an offence for a person to disclose, receive or solicit any information, document or other thing that was the subject of a protection application that was not granted by the Supreme Court if the person knows or is reckless as to the fact that the information, document or other thing was the subject of a protection application that was not granted. The penalty for a natural person is level 6 imprisonment (5 years maximum) or a level 6 fine (600 penalty units maximum), or both. The penalty for a body corporate is a level 2 fine (3000 penalty units maximum). 67

The new offence is subject to the following exemptions provided for in new section 37A(3)--  disclosure, receipt or solicitation of any information, document or other thing that was in the public domain at the time of the disclosure, receipt or solicitation; or  disclosure, receipt or solicitation of any information, document or other thing that has been adduced in evidence by or on behalf of the applicant in relation to a substantive application; or  disclosure, receipt or solicitation of any information, document or other thing by a law enforcement officer in the performance of duty; or  disclosure of any information, document or other thing by a person to a lawyer, or the receipt or solicitation of any information, document or other thing by a lawyer from a person, in the course of the person consulting the lawyer for legal advice; or  disclosure, receipt or solicitation of any information, document or other thing that is published in accordance with a Supreme Court order under new section 36(1); or  disclosure, receipt or solicitation of any information, document or other thing that is required, authorised or permitted by or under the Terrorism (Community Protection) Act 2003. New section 37A(4) provides that a person does not commit an offence under new section 37A(2) if--  the person presents or points to evidence that suggests a reasonable possibility that a circumstance referred to in new section 37A(3) existed at the time of the alleged commission of the offence; and  the contrary is not proved (beyond reasonable doubt) by the prosecution. 68

Division 5--Oversight by Victorian Inspectorate and annual reporting Clause 72 inserts a definition of member of Victoria Police personnel into section 3 of the Terrorism (Community Protection) Act 2003. Clause 73 amends section 11 of the Terrorism (Community Protection) Act 2003. Existing section 11 provides for reporting of covert warrants that have been issued by the Supreme Court under Part 2 of the Terrorism (Community Protection) Act 2003. The 2014 Victorian Review of Counter-Terrorism Legislation saw little purpose in reporting to the Supreme Court, and recommended that the Victorian Inspectorate should be given oversight powers and that covert warrant reports could be provided to the Victorian Inspectorate. Amended section 11 requires that the person to whom the warrant is issued must provide that report to the Victorian Inspectorate (instead of the Supreme Court). It does not change requirements for the content of the reports; the report must be provided within 7 days of the expiry of the warrant, and include the matters set out in existing section 11(2). Clause 74 repeals section 12(c) of the Terrorism (Community Protection) Act 2003 as it is no longer necessary. Only the Victorian Inspectorate will have access to the report so there is no need for an offence covering reports of information derived from it. Clause 75 repeals section 13, which provided for annual reporting of covert warrants. This obligation is now in new Part 6A. Clause 76 repeals section 13ZR, which provided for annual reporting of preventative detention orders. This obligation is now in new Part 6A. Clause 77 repeals section 21M, which provided for annual reporting of special police powers. This obligation is now in new Part 6A. Clause 78 inserts new Parts 6 and 6A into the Terrorism (Community Protection) Act 2003. Part 6--Role of Victorian Inspectorate New Part 6 provides for the Victorian Inspectorate to monitor compliance by police officers and protective service officers with Parts 2, 2AA and 3A of Terrorism (Community Protection) 69

Act 2003. Nothing in relation to the Victorian Inspectorate's oversight role affects the functions and powers of the IBAC. Any police misconduct discovered by the Victorian Inspectorate in the course of its inspections would be referred to the IBAC. New section 37B sets out the mandatory time periods for carrying out inspections of the records of Victoria Police. New subsection (1) requires a routine inspection at least twice per financial year, to ascertain the extent to which police officers and protective services officers have complied since the previous inspection with Parts 2, 2AA and 3A. This provision includes reference to protective services officers as Part 3A (special police powers) applies to both police officers and protective services officers. Subsection (2) enables a discretionary inspection at any time, to ascertain compliance during any period. Subsection (3) provides that the Victorian Inspectorate must notify, in writing, the Chief Commissioner of the date or dates on which an inspection under subsection (1) will be conducted at least 7 days before the date or dates of inspection. Subsection (4) provides that after notifying the Chief Commissioner in accordance with subsection (3), the Victorian Inspectorate may enter premises occupied by Victoria Police on the date or dates specified in the notice under that subsection for the purposes of an inspection under subsection (1). Subsection (5) provides that in addition, for the purposes of an inspection under subsection (2), the Victorian Inspectorate may, at any reasonable time after notifying the Chief Commissioner of Police, enter premises occupied by Victoria Police. Subsection (6) provides that on entry into premises occupied by Victoria Police under subsection (4) or (5), the Victorian Inspectorate is, subject to section 37C(2), entitled to have full and free access to all records of Victoria Police that are relevant to the inspection. Subject to section 37C(3), the Victorian Inspectorate may require a member of Victoria Police personnel to give the Victorian Inspectorate any information that the Victorian Inspectorate considers necessary, being information that is in the member's possession, or to which the member has access, and that is relevant to the inspection. 70

Subsection (7) requires the Chief Commissioner to ensure that members of Victoria Police personnel give any reasonably required assistance to the Victorian Inspectorate to perform a function or exercise a power. Subsection (8) provides that record includes part of a record. New section 37C(1) provides that the Inspector or an authorised Victorian Inspectorate officer may perform a function or exercise a power set out in new section 37B(1), (2), (4), (5) or (6) on behalf of the Victorian Inspectorate. This is subject to subsections (2) and (3) Subsection (2) provides that the Inspector or an authorised Victorian Inspectorate officer must not inspect a record that is counter-terrorism intelligence unless the Inspector or authorised Victorian Inspectorate officer has been given a security clearance at an appropriate level which enables that person to inspect that record. Subsection (3) provides that a member of Victoria Police personnel is not required, under section 37B, to give the Inspector or an authorised Victorian Inspectorate officer information that is counter-terrorism intelligence unless the Inspector or authorised Victorian Inspectorate officer has been given a security clearance at an appropriate level which enables the Inspector or authorised Victorian Inspectorate officer to be given that information. Subsection (4) provides that on the Victorian Inspectorate notifying the Chief Commissioner of the date or dates of inspection under section 37B(3), the Chief Commissioner, as soon as practicable after receiving that notification, must advise, in writing, the Victorian Inspectorate as to the appropriate level of security clearance required for the Inspector or an authorised Victorian Inspectorate officer to enable them, under section 37B-- (a) to inspect a record or class of records that is counter-terrorism intelligence; or (b) to receive information that is counter-terrorism intelligence. 71

Subsection (5) provides for the power of the Victorian Inspectorate to authorise, in writing, a Victorian Inspectorate Officer to perform a function or exercise a power under new section 37B(1), (2), (4), (5) or (6). Subsection (6) provides definitions for an authorised Victorian Inspectorate officer, Inspector, record and Victorian Inspectorate Officer. New section 37D sets out the Victorian Inspectorate's reporting obligations with respect to periodic inspections. Subsection (1) requires a report to Parliament every 6 months on the results of each inspection conducted in that time. Subsection (2) requires the Victorian Inspectorate give the Chief Commissioner a reasonable opportunity to provide an opinion on the report. Subsection (3) requires the Chief Commissioner to advise the Victorian Inspectorate of any material that should be excluded from the report, and subsection (4) requires the Victorian Inspectorate to exclude that material if so advised. New subsection (5) specifies that the reports must be provided to both Houses of Parliament and the Minister as soon as practicable after 1 January and 1 July each year. The Attorney-General is the relevant Minister responsible for administering Part 6 of the Terrorism (Community Protection) Act 2003. New subsection (6) requires the report to be laid before Parliament on the same day that it is received or the next sitting day. Part 6A--Annual reporting New Part 6A sets out the annual reporting requirements under the Terrorism (Community Protection) Act 2003. Previously, reporting requirements were placed in different parts of the Act. New Part 6A consolidates the annual reporting requirements into the same Part. New section 37E inserts definitions into new Part 6A, to set out the information which must be included in relevant parts of the annual report. New section 37F sets out that the Chief Commissioner must submit a report to the Minister that includes information in respect of police powers under the Terrorism (Community Protection) Act 2003 in each financial year. The report must include information about-- 72

(a) covert search warrants; (b) detain and decontaminate powers; (c) police detention decisions; (d) preventative detention orders; (e) special police powers; and (f) any other information that the Minister considers appropriate and specifies in writing to the Chief Commissioner. New subsection (3) requires the Chief Commissioner to advise the Minister of any material that should be excluded from the report, and new subsection (4) requires the Minister to exclude that material if satisfied. New subsection (5) specifies that the Minister must cause a copy to be laid before each House of Parliament within 12 sitting days of receiving it. The Attorney-General is the relevant Minister responsible for administering new Part 6A of the Terrorism (Community Protection) Act 2003. Division 6--Other amendments Clause 79 makes consequential amendments to section 13D, 13E, 13N, 13O, 13W, 13WA, 13ZJ and 13ZM of the Terrorism (Community Protection) Act 2003 to reflect the transfer of Youth Justice from the Department of Health and Human Services to the Department of Justice and Regulation and to reflect the change of department name from the Department of Justice to the Department of Justice and Regulation. Part 3--Amendment of Bail Act 1977 Clause 80 inserts definitions into section 3 of the Bail Act 1977. Section 3 contains definitions for the purposes of that Act. Subclause (1) inserts new definitions of terrorism or foreign incursion offence, terrorism record, terrorism-related order, terrorism risk information and terrorist act. These definitions are necessary for the purposes of new bail requirements introduced by Part 3 of the Bill, and mirror the definitions that 73

are also inserted by this Bill into the parole provisions of the Corrections Act 1986 and the Children, Youth and Families Act 2005. Terrorism or foreign incursion offence is defined to mean an offence against--  Section 4B of the Terrorism (Community Protection) Act 2003. That section makes it an offence to intentionally provide documents or information to another person with the intention of facilitating preparation for, the engagement of a person in, or assistance in a terrorist act.  A provision of another State or Territory that corresponds to section 4B of the Terrorism (Community Protection) Act 2003.  A provision of Subdivision A of Division 72 of Chapter 4 of the Commonwealth Criminal Code, which relates to international terrorist activities using explosive or lethal devices. Subdivision A includes offences which prohibit conduct such as intentionally discharging or detonating an explosive device in a public place intending to cause death or serious harm.  A provision of Part 5.3 of the Commonwealth Criminal Code, which relates to terrorism. Part 5.3 includes a number of offences that prohibit conduct such as engaging in a terrorist act, providing or receiving training connected with terrorist acts, recruiting for a terrorist organisation and financing terrorism.  A provision of Part 5.5 of the Commonwealth Criminal Code, which relates to foreign incursion and recruitment. Part 5.5 includes a number of offences that prohibit conduct such as engaging in hostile activities overseas and recruiting persons to join organisations engaged in hostile activities against foreign governments.  A provision of the Commonwealth Crimes (Foreign Incursions and Recruitment) Act 1978 as in force before its repeal. That Act contained similar offences to those now contained in Part 5.5 of the Commonwealth Criminal Code, for example in 74

relation to entering foreign countries to engage in hostile activities. Terrorism record has the meaning given in new section 3AAB, which is inserted by clause 82 of the Bill. A terrorism-related order is relevant to the definition of terrorism record in clause 82 of the Bill. This term is defined as--  a control order, a continuing detention order or an interim detention order, all within the meaning of Part 5.3 of the Commonwealth Criminal Code, or  a preventative detention order, a prohibited contact order, or an order made under a corresponding preventative detention law, all within the meaning of Part 2A of the Terrorism (Community Protection) Act 2003). These orders may impose varying degrees of obligations and restrictions on a person, including in some cases providing for the detention of the person. The orders can be made for various purposes, including purposes connected to terrorism. For example, assisting to prevent a terrorist act or the provision of support for a terrorist act. Terrorism risk information has the meaning given in new section 3AAC, which is inserted by clause 82 of the Bill. A terrorist act is defined to have the same meaning as in the Terrorism (Community Protection) Act 2003. Section 4(1) of that Act provides that a terrorist act means an action or threat of action where--  the action falls within subsection (2) and not subsection (3)  the action is done or the threat is made with the intention of advancing a political, religious or ideological cause, and  the action is done or the threat is made with the intention of coercing, or influencing by intimidation, an Australian or foreign government (or a part thereof), or intimidating the public or a section of the public. 75

Action falls within subsection (2) if it--  causes death or serious physical harm to a person  causes serious property damage  endangers a person's life (other than the life of the person taking the action)  creates a serious risk to public health or safety, or  seriously interferes with, seriously disrupts, or destroys, an electronic system (including telecommunications or transport systems, among others). Action falls within subsection (3) if it is advocacy, protest, dissent or industrial action and it is not intended to cause death or serious physical harm to a person or to endanger life or create a serious risk to public health or safety. Subclause (2) substitutes a new definition of terrorist organisation, which is defined to have the same meaning as in Division 102 of the Commonwealth Criminal Code. Under that Division, a terrorist organisation means an organisation that is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act, or an organisation that is specified by the regulations for the purposes of the definition. Clause 81 amends section 3AAA of the Bail Act 1977, as inserted into that Act by section 5 of the Bail Amendment (Stage Two) Act 2018. Section 3AAA sets out the surrounding circumstances to be taken into account in bail-related matters. Subclause (1) substitutes paragraph (m) of section 3AAA with new paragraphs (m) and (n). Under both section 3AAA(m) of the Bail Act 1977 as amended by the Bail Amendment (Stage Two) Act 2018, and under section 4(3)(ba) of the current Bail Act 1977, a relevant consideration in bail matters is whether the accused has publicly expressed support for a terrorist act or a terrorist organisation or the provision of resources to a terrorist organisation. New section 3AAA(1)(m) replicates paragraph (m) of section 3AAA, but removes the requirement for the support to be expressed publicly. 76

New section 3AAA(1)(n) inserts an additional matter to the list of surrounding circumstances in section 3AAA, requiring bail decision makers to take into account--subject to section 3AAA(2)--whether the accused has, or has had, an association with a person or group connected to terrorism. Subclause (2) inserts subsection (2) to section 3AAA. New section 3AAA(2) qualifies the requirement for a bail decision maker to consider an accused's association with a person or group connected to terrorism under section 3AAA(1)(n). In effect, it requires the bail decision maker to first consider the information regarding the accused person's association with a person or group connected to terrorism and determine whether it is satisfied that the accused knew of the person or group's terrorism connection. If the bail decision maker is satisfied as to this, the bail decision maker must have regard to such information. However, if the bail decision maker is not satisfied that the accused knew of the person or group's terrorism connection, the bail decision maker is prevented from having regard to that information. This ensures that only intentional associations with persons and groups connected to terrorism are considered in determining whether to grant bail to the accused. Inadvertent or incidental associations will not be considered. However, this does not prevent the bail decision maker from having regard to the matters listed in new section 3AAA(1)(m). Corresponding requirements as to the treatment of such information is reflected in the parole provisions introduced into the Corrections Act 1986 by clauses 121, 123 and 124 of this Bill. Clause 82 inserts new sections 3AAB and 3AAC into the Bail Act 1977, which define terrorism record and terrorism risk information respectively for the purposes of that Act. These definitions are also mirrored in the parole provisions introduced into the Corrections Act 1986 by clause 119 of this Bill. Under new section 3AAB, a person has a terrorism record if the person has been convicted of a terrorism or foreign incursion offence or the person is or has been subject to a terrorism-related order (see definitions of these terms in clause 80 above). Under Part 3 of the Bill, an accused who has a terrorism record will be subject to different 77

presumptions in relation to the bail decision making process (see clauses 84 and 96). Other accused persons for whom a terrorism issue arises are also subject to these presumptions in certain circumstances (see clauses 84, 89 and 95). Under new section 3AAC, terrorism risk information, in respect of a person, means an assessment that there is a risk that the person will commit a terrorism or foreign incursion offence and the information relied on in making that assessment. This assessment may be made by a specified entity, which includes the Australian Crime Commission (which is currently known as the Australian Criminal Intelligence Commission), Victoria Police, the Australian Federal Police, the Australian Security and Intelligence Organisation, the Department of Justice and Regulation, the police force or service of another State or Territory, the Commonwealth Department of Home Affairs (this includes the former Department of Immigration and Border Protection), or a prescribed person or body. These bodies may have relevant information that would assist the bail decision maker in making bail decisions about accused persons who pose a terrorism risk. The inclusion of a prescribed person or body also enables regulations to specify that any other additional person or body is also a specified entity for the purposes of terrorism risk information. This may include, for example, other correctional services authorities around Australia. Other bodies may also be prescribed as specified entities as required. There is no requirement for terrorism risk information to be contained in a formal report or to include a formal assessment of risk (for example, based on clinical risk assessment tools). The bail decision maker is required to consider any terrorism risk information that it receives in respect of an accused when making bail decisions about that accused (see clause 89). New section 3AAC(3) provides examples of, but does not limit, the kind of information that may be relied on in assessing an accused's risk of committing a terrorism or foreign incursion offence. This includes information that the accused has expressed support for terrorism, whether in public or in private, or has associated with a person or group connected to terrorism. Other information may also be relevant depending on the circumstances and may be included in terrorism risk information. 78

The Note to new section 3AAC explains that a bail decision maker is prevented from having regard to information regarding a person's association with persons or groups connected to terrorism unless the person knew of the relevant terrorism connection. See further discussion of this matter under clause 81 above and 89 below. Clause 83 substitutes section 3D of the Bail Act 1977 as inserted by section 6 of the Bail Amendment (Stage Two) Act 2018 to provide for new flow charts. Certain bail decision processes will change as a consequence of the changes introduced by this Bill, and the new flow charts will illustrate the key features of how the different bail tests will apply. These flow charts are intended only as a guide to the reader, as the substantive requirements for bail decision-making are set out in other provisions of the Bail Act 1977. Flow Chart 1 in substituted section 3D(2) shows the process for determining which test to apply. Flow Chart 2 in substituted section 3D(3) shows the process for applying the exceptional circumstances test and then the unacceptable risk test. Flow Chart 3 in substituted section 3D(4) shows the process for applying the show compelling reason test and then the unacceptable risk test. Flow Chart 4 in substituted section 3D(5) shows the process for applying the unacceptable risk test on its own. Clause 84 inserts new section 4AA into the Bail Act 1977, which provides guidance as to when the different bail tests apply in relation to a decision to grant or refuse bail. As amended by the Bail Amendment (Stage One) Act 2017 and Bail Amendment (Stage Two) Act 2018, the Bail Act 1977 requires the "exceptional circumstances" and "unacceptable risk" tests to be applied in relation to the most serious offences, the "compelling reason" and "unacceptable risk" tests to be applied in relation to other serious offences, and the "unacceptable risk" test alone to be applied in relation to all other offences. As this Bill introduces further complexity to how the bail tests apply, provisions relating to the different bail tests have been reorganised and redrafted for clarity (see also clauses 85--88). New section 4AA sets out the circumstances when 2 bail tests must be applied. 79

Sections 4AA(1) and (2) set out when the "exceptional circumstances" test applies as the first step in a decision to grant or refuse bail to a person. The test applies where--  a person is accused of a Schedule 1 offence (these are listed in Schedule 1 to the Bail Act 1977 as inserted by the Bail Amendment (Stage One) Act 2017); or  a person is accused of a Schedule 2 offence (these are listed in Schedule 2 to the Bail Act 1977 as inserted by the Bail Amendment (Stage One) Act 2017) in circumstances where--  the person has a terrorism record (see clause 82); or  a court has determined under section 8AA that there is a risk that the person will commit a terrorism or foreign incursion offence (see clause 89); or  the offence is alleged to have been committed while the person was on a form of conditional liberty in relation to a Schedule 1 offence or a Schedule 2 offence; or  the person conspired, incited or attempted to commit the Schedule 2 offence while on a form of conditional liberty in relation to a Schedule 1 offence or Schedule 2 offence. Section 4AA(3) and (4) sets out when the "compelling reason" test applies as the first step in a decision to grant or refuse bail to a person. The test applies where--  a person is accused of a Schedule 2 offence in circumstances where the "exceptional circumstances" test does not apply, or  a person is accused of an offence that is neither a Schedule 1 offence nor a Schedule 2 offence in circumstances where--  the person has a terrorism record (see clause 82); or 80

 a court has determined under section 8AA that there is a risk that the person will commit a terrorism or foreign incursion offence (see clause 89). The Note at the foot of new section 4AA draws attention to how the "unacceptable risk" test applies to all decisions to grant or refuse bail--as a second step if either of the "exceptional circumstances" or "compelling reason" test applies, or as the only step if neither the "exceptional circumstances" or "compelling reason" tests applies. Other than the new requirements relating to persons with a terrorism record or who are at risk of committing a terrorism or foreign incursion offence, there is no change to the substantive requirements as to how the bail tests apply in the Bail Act 1977 as amended by the Bail Amendment (Stage One) Act 2017 and Bail Amendment (Stage Two) Act 2018. The substantive requirement of item 3 of Schedule 1, as well as item 12 in relation to item 3 (as inserted by the Bail Amendment (Stage One) Act 2017) has now been transposed into section 4AA(2)(c) and (d). The new requirements relating to persons with a terrorism record or who are at risk of committing a terrorism or foreign incursion offence effectively require such persons to be subject to a more onerous bail test than they otherwise would have been. For example, if the accused would normally be subject to the "compelling reason" test, then they would now be subject to the "exceptional circumstances" test; if the accused would normally have been subject to the "unacceptable risk" test alone, they would now also be subject to the "compelling reason" test as well as the "unacceptable risk" test. Both the "exceptional circumstances" and "compelling reason" tests reverse the presumption of bail and require the accused to demonstrate why bail ought to be granted. The introduction of this presumption against bail and the requirement for more onerous tests for accused persons who may pose a terrorist threat implements the Expert Panel's recommendations (Report 1--recommendations 9 and 10). These requirements broadly correspond with the new parole provisions introduced by this Bill (see clauses 121--123). 81

Clause 85 amends section 4A of the Bail Act 1977 as inserted by section 7 of the Bail Amendment (Stage Two) Act 2018. As inserted, section 4A(1) states that the "exceptional circumstances" test applies in relation to a person accused of a Schedule 1 offence. However, new section 4AA(1) and (2) as inserted by clause 84 of this Bill sets out when the "exceptional circumstances" test applies, which is broader than when a person is accused of a Schedule 1 offence. Clause 85 therefore makes consequential amendments to section 4A, to reference the requirements in new section 4AA(1) and (2). Clause 86 repeals section 4B of the Bail Act 1977 as inserted by section 7 of the Bail Amendment (Stage Two) Act 2018. Section 4B sets out how the "unacceptable risk" test applies following the application of the "exceptional circumstances" test. Due to the redrafting of the bail test provisions, this section is no longer required as the substantive requirement in section 4B is incorporated into section 4D (see clause 88). Clause 87 amends section 4C of the Bail Act 1977 as inserted by section 7 of the Bail Amendment (Stage Two) Act 2018. As inserted, section 4C(1) states that the "compelling reason" test applies in relation to a person accused of a Schedule 2 offence. However, new sections 4AA(3) and (4) as inserted by clause 84 of this Bill set out when the "compelling reason" test applies, which is broader than when a person is accused of a Schedule 2 offence. Clause 87 therefore makes consequential amendments to section 4C, to reference the requirements in new section 4AA(3) and (4). Clause 88 amends section 4D of the Bail Act 1977 as inserted by section 7 of the Bail Amendment (Stage Two) Act 2018. As inserted, section 4D sets out how the "unacceptable risk" test applies following the application of the "compelling reason" test. The amendments introduced by clause 88 incorporate the substantive requirements of section 4B, repealed by clause 86 of this Bill, into section 4D. This means that new section 4D will state that the "unacceptable risk" test applies if the accused has satisfied either the "exceptional circumstances" or "compelling reason" test. There is no substantive change to the bail test requirements in this amendment. 82

Clause 89 inserts new section 8AA into the Bail Act 1977, which adds an additional step to the bail decision-making process for persons who may be at risk of committing a terrorism or foreign incursion offence. This step will determine whether the person is then subject to a more onerous bail test. New section 8AA(1) sets out when this additional step applies. It applies if a person is accused of an offence (other than a person arrested on a fines enforcement warrant), does not have a terrorism record, and the prosecutor states that the prosecutor has terrorism risk information in relation to the accused and alleges that the information shows there is a risk that the accused will commit a terrorism or foreign incursion offence. The operation of new sections 10(5AA) and 10A(5AA) (see clauses 90 and 91) mean that in effect, only a court will be able to make a decision in relation to an accused to whom section 8AA applies. If section 8AA applies, new section 8AA(2) requires the court, before determining whether to grant bail, to determine whether there is a risk that the accused will commit a terrorism or foreign incursion offence. If the court finds that there is such a risk, the accused will then be subject to a more onerous bail test under the requirements of new section 4AA(2)(b) and (4)(b) as inserted by clause 84. New section 8AA(3) and (4) set out requirements as to how the court must make a determination under subsection (2). Subsection (3) requires the court to have regard to any terrorism risk information provided to it, and subsection (4) qualifies this requirement by preventing the court from having regard to such information where the information relates to an accused's unknowing association with a person or group connected to terrorism. Similarly to new section 3AAA(2), inserted by clause 81(2) of this Bill, this in effect requires the court to first consider the information regarding the accused person's association with a person or group connected to terrorism and determine whether it is satisfied that the accused knew of the person or group's terrorism connection. If the court is satisfied as to this, the court must have regard to such information. However, if the court is not satisfied that the accused knew of the person or group's terrorism connection, the court is prevented from having regard to that information. This ensures that only intentional associations with persons and groups connected to terrorism are considered in determining whether to grant bail to 83

the accused. Inadvertent or incidental associations will not be considered. However, this does not prevent the court from having regard to the matters listed in new section 3AAA(1)(m), which relate to whether the accused has expressed support for terrorist acts, organisations or resourcing. New section 8AA(5) then clarifies that this section does not prevent a court from considering whether there is an "unacceptable risk" that an accused would, if released on bail, commit a terrorism or foreign incursion offence. A bail decision maker is already required, under the usual bail decision-making process, to consider terrorism related risks as part of the surrounding circumstances in section 3AAA, and the application of section 8AA is not intended to modify how the surrounding circumstances ought to be considered in a bail decision more generally. For example, it may be that an accused person is subject to an "exceptional circumstances" test by virtue of the application of section 8AA and 4AA(2)(b) combined. However, that accused may be able to show "exceptional circumstances" as to why bail should be granted--which then leaves the court to consider under section 4E of the Bail Act 1977 whether there is an "unacceptable risk" that the accused would commit an offence, which could well be a terrorism or foreign incursion offence. Further, there may be circumstances where section 8AA does not apply but where a bail decision maker may still find that the accused poses an "unacceptable risk" of committing a terrorism or foreign incursion offence--such as where there is evidence of this risk that falls outside the meaning of "terrorism risk information" as defined in new section 3AAC. The introduction of this process in new section 8AA enables a court to apply the appropriate bail test in relation to a person who may pose a terrorist threat, thereby supporting the implementation of the Expert Panel's recommendations (Report 1--recommendation 9 and 10). This process broadly corresponds with the new parole process introduced by clause 122 of this Bill. Clause 90 amends section 10 of the Bail Act 1977 as substituted by the Bail Amendment (Stage One) Act 2017 and amended by the Bail Amendment (Stage Two) Act 2018. This section concerns the power of police officers, sheriffs or persons 84

authorised under the Fines Reform Act 2014 to make bail decisions. Subclause (1) substitutes the Notes at the foot of section 10(5), to update references to the sections of the Bail Act 1977 which impose restrictions on who may grant bail in certain circumstances. These Notes are required to be updated as a consequence of other changes introduced by this Bill. Subclause (2) inserts new subsection (5AA). New section 10(5AA) provides that a bail decision maker is prohibited from granting bail if the prosecutor states that the prosecutor has terrorism risk information in respect of the accused and alleges that this information shows that there is a risk that the accused will commit a terrorism or foreign incursion offence. This situation corresponds with the situation where new section 8AA, inserted by clause 89 of this Bill, applies. In combination with new section 8AA and new section 10A(5AA) (inserted by clause 91 of this Bill), this means that in effect only a court may grant bail to such a person. This implements the Expert Panel's recommendation (Report 1--recommendation 11). Subclause (3) amends subsection (5A) to update references to sections where a bail decision maker is prohibited from granting bail. These changes are required as a consequence of other changes introduced by this Bill. Clause 91 amends section 10A of the Bail Act 1977 as inserted by the Bail Amendment (Stage One) Act 2017 and amended by the Bail Amendment (Stage Two) Act 2018. This section concerns the power of bail justices to make bail decisions. Subclause (1) substitutes the Notes at the foot of section 10A(5), to update references to the sections of the Bail Act 1977 which impose restrictions on who may grant bail in certain circumstances. These Notes are required to be updated as a consequence of other changes introduced by this Bill. Subclause (2) inserts new subsections (5AA) and (5AAB). New section 10A(5AA) provides that a bail justice is prohibited from granting bail if the prosecutor states that the prosecutor has terrorism risk information in respect of the accused and alleges that this information shows that there is a risk that the accused will commit a terrorism or foreign incursion offence. 85

This situation corresponds with the situation where new section 8AA, inserted by clause 89 of this Bill, applies. In combination with new section 8AA and new section 10(5AA) (inserted by clause 90 of this Bill), this means that in effect only a court may grant bail to such a person. This implements the Expert Panel's recommendation (Report 1--recommendation 11). New section 10A(5AAB) provides that if a bail justice is prohibited by certain other provisions of the Bail Act 1977 from granting bail to a person, then the bail justice must refuse to consider whether to grant or refuse bail. Clause 92 inserts new section 10B to require an informant to cause a person to be brought to court as soon as practicable if a bail justice is prohibited by certain sections of the Bail Act 1977 from granting bail to a person. The requirements in new sections 10A(5AAB) and 10B correspond with the equivalent requirement in section 10(5A) of the Bail Act 1977 as inserted by the Bail Amendment (Stage Two) Act 2018, which requires police and other decision makers to refuse to consider whether to grant or refuse bail and bring the person before the court as soon as practicable. The difference in new section 10B is that it imposes the obligation upon the informant to cause the person to be brought before a court, in acknowledgement of the fact that bail justices do not have a role in transporting persons in custody. Clause 93 amends section 12 of the Bail Act 1977 as inserted by the Bail Amendment (Stage One) Act 2017 and amended by the Bail Amendment (Stage Two) Act 2018. This section concerns the power of courts to make bail decisions. Subclause (1) amends subsection (1) to update references to sections requiring that a person must be brought before a court for a bail decision. These changes are required as a consequence of new section 10B, inserted by clause 92 of this Bill, which requires an informant to bring a person to court where a bail justice cannot make a bail decision. Subclause (2) substitutes the Note at the foot of section 12(3). As inserted by the Bail Amendment (Stage One) Act 2017, this Note refers to section 13 generally which restricts certain bail decisions to courts. The new Note provides more targeted information about section 13, to refer to situations where bail decisions are restricted to particular courts. 86

Subclause (3) substitutes section 12(3A) as inserted by the Bail Amendment (Stage Two) Act 2018. The substitution removes the part of the subsection relating to the requirement to record reasons for Schedule 1 offences, as that requirement has been transposed into a new section concerning statements of reasons (see clause 94). Clause 94 substitutes section 12A of the Bail Act 1977 as inserted by the Bail Amendment (Stage Two) Act 2018. As inserted, this section requires a bail decision maker to record a statement of reasons where bail is granted for a persona accused of Schedule 2 offences. New section 12A will require a bail decision maker to record a statement of reasons where bail has been granted in situations where either the "exceptional circumstances" or "compelling reason" test applies. If the bail decision maker is a court, then the court must record these reasons in its order. Other bail decision makers must record and transmit the reasons as required by the regulations. The substituted section consolidates the requirements as to the recording of statements of reasons where bail is granted, and ensures that reasons are required to be recorded whenever either the "exceptional circumstances" or "compelling reason" test applies, regardless of the nature of the offence or the bail decision maker. The language is also updated to refer to new section 4AA (inserted by clause 84) rather than the Schedules to the Bail Act 1977. Clause 95 amends section 13 of the Bail Act 1977 as substituted by the Bail Amendment (Stage One) Act 2017 and amended by the Bail Amendment (Stage Two) Act 2018. This section imposes restrictions on who may grant bail in certain circumstances. Subclause (1) substitutes the heading to section 13 to remove the reference to Schedule 1 offences. Due to other changes introduced by this Bill, the restrictions as to who may grant bail has been expanded beyond circumstances where a person is accused of committing Schedule 1 offences. Specifically, this is due to the new requirements in relation to accused persons who may pose a terrorist threat and the transposition of the substantive requirement in item 3 (and item 12 in relation to item 3) of Schedule 1 into new section 4AA. 87

Subclause (2) substitutes section 13(3), (4) and (5). As inserted by the Bail Amendment (Stage One) Act 2017 and amended by the Bail Amendment (Stage Two) Act 2018, these subsections require that only a court may grant bail to a person accused of a Schedule 1 offence. The subsections also include certain exceptions from this requirement where that person has been accused of a Schedule 1 offence solely due to offending that has occurred while on some form of conditional liberty. As noted in clause 84, these provisions have been redrafted to accommodate the new requirements concerning accused persons who pose terrorist threats and to transpose the substance of item 3 (and item 12 in relation to item 3) of Schedule 1. New subsection (3) therefore provides that only a court may grant bail to a person to whom the "exceptional circumstances" test applies, and new subsection (4) provides an exception to this requirement in certain circumstances relating to situations where the "exceptional circumstances" test applies only because the accused was on some form of conditional liberty at the time of offending. This redrafting introduces no substantive change to the restrictions as to who must go to court for a bail, other than the changes introduced by other parts of this Bill relating to persons who pose a terrorist threat. New subsection (5) inserts a new requirement that only a court may grant bail to a person accused of certain Commonwealth terrorism offences. These offences are not Schedule 1 offences as Commonwealth law applies to limit bail decision making for persons accused of such offences. The Note at the foot of this subsection also draws attention to the relevant Commonwealth legislation which includes a requirement for the bail authority to be satisfied that exceptional circumstances exist to justify bail. This insertion is a new requirement as there is currently nothing to prevent police, bail justices or other non-court bail decision makers from making bail decisions for persons accused of these offences. Subclause (3) repeals section 13(6) of the Bail Act 1977 as inserted by the Bail Amendment (Stage Two) Act 2018. The substance of this requirement has been subsumed in new subsections (3) and (4) as inserted by subclause (2). 88

Clause 96 inserts new section 13AA into the Bail Act 1977. New section 13AA provides that only a court may grant bail to a person who has a terrorism record, irrespective of the offence of which the person is accused. As a presumption against bail will apply to persons with a terrorism record (see new section 4AA(2)(a) and (4)(a), inserted by clause 84), the limitation of the bail decision maker to a court implements the Expert Panel's recommendation (Report 1--recommendation 11). Clause 97 amends Schedule 1 to the Bail Act 1977 as inserted by the Bail Amendment (Stage One) Act 2017. Schedule 1 lists the most serious offences for which the "exceptional circumstances" test applies. The amendments introduced to Schedule 1 are consequential in nature following the other amendments in this Bill. Subclause (1) substitutes the heading to the Schedule to remove the reference to "exceptional circumstances". This is because there will now be more situations--other than those outlined in Schedule 1--where an accused must demonstrate "exceptional circumstances" in order to be granted bail. Subclause (2) inserts Notes after the heading to Schedule 1. These Notes refer to new section 4AA(1) and (2), as inserted by clause 83, which sets out when the "exceptional circumstances" test applies. Subclause (3) repeals item 3 of Schedule 1. This substance of this item--including item 12 in relation to item 3--has been transposed to new section 4AA(2)(c) and (d) inserted by clause 84. There is no substantive change in this regard. Clause 98 amends Schedule 2 to the Bail Act 1977 as inserted by the Bail Amendment (Stage One) Act 2017. Schedule 2 lists the serious offences for which the "compelling reason" test applies. The amendments introduced to Schedule 2 are consequential in nature following the other amendments in this Bill. Subclause (1) substitutes the heading to the Schedule to remove the reference to "show compelling reason". This is because there will now be more situations--other than those outlined in Schedule 2--where an accused must demonstrate a "compelling reason" in order to be granted bail. Further, because of the 89

removal of item 3 (and item 12 in relation to item 3) from Schedule 1 into new section 4AA, the situations where a person accused of a Schedule 2 offence will be required to show "exceptional circumstances" is no longer covered by Schedule 1. Subclause (2) inserts a Note after the heading to Schedule 2, to refer to situations where a person accused of a Schedule 2 offence will be subject to the "exceptional circumstances" test or "compelling reason" test. Clause 99 inserts new subsection (20) in section 34 of the Bail Act 1977. New section 34(20) is a transitional provision. It provides that an amendment made by this Part of the Bill applies to a bail application made, or an appeal commenced, on or after the commencement of that provision. This Bill will make a number of changes to the Bail Act 1977 that will affect the decision-making process for bail decision makers. This transitional provision will ensure that the Bail Act 1977 will operate in the same way on any given day, regardless of when the offence which gave rise to the bail application was alleged to have been committed. Part 4--Amendment of Children, Youth and Families Act 2005 Division 1--Terrorism risk information Clause 100 inserts new definitions into section 3(1) of the Children, Youth and Families Act 2005. The definitions of terrorism or foreign incursion offence, terrorism record, terrorism-related order, terrorism risk information, terrorist act and terrorist organisation are consistent with definitions inserted in section 3(1) of the Corrections Act 1986 by clause 118 of the Bill. Clause 101 inserts new section 3A and 3B into the Children, Youth and Families Act 2005 to further define terrorism record and terrorism risk information. These terms have the same meaning as those in new sections 3A and 3B of the Corrections Act 1986 inserted by clause 119 of the Bill. Clause 102 inserts new Division 1AA into Part 5.6 of the Children, Youth and Families Act 2005. Part 5.6 concerns the Youth Parole Board's power to transfer people between youth justice facilities and prison. New section 461A provides that in considering 90

whether to exercise a power under Part 5.6, if the Youth Parole Board has received terrorism risk information about a person having an association with a person or group connected to terrorism, it is prevented from having regard to such information unless satisfied that the person knew of the other person or group's terrorism connection. However, if the Youth Parole Board is not satisfied that the person knew of that terrorism connection, the Youth Parole Board is prevented from having regard to that aspect of the terrorism risk information. This ensures that only intentional associations with persons and groups connected to terrorism are considered in making a decision under Part 5.6 of the Children, Youth and Families Act 2005. Inadvertent or incidental associations will not be considered. Clause 103 inserts new Part 5.10 into the Children, Youth and Families Act 2005, which concerns the sharing of terrorism risk information. New section 492C specifies the permitted purposes for sharing information under new Part 5.10 and includes informing decisions about a person's parole or bail or their care, control or management when remanded in custody or subject to a sentence. The reference to a sentence includes both custodial and community based court orders. New section 492D enables the Secretary of the Department of Justice and Regulation and a person employed by the Department to disclose terrorism risk information to a risk assessment entity or the Youth Parole Board for the permitted purposes described in section 492C. The Department of Justice and Regulation is a risk assessment entity (as specified in 3B(2) of the Corrections Act 1986). As such, terrorism risk information is able to be shared by employees within the Department for the permitted purposes outlined in section 492C. New section 492E enables a member of the Youth Parole Board, and its secretary, to disclose terrorism risk information to the Department of Justice and Regulation for the permitted purposes described in new section 492C. This will ensure that the Board is able to communicate confidential information about a young person, where relevant, with those responsible for their day to day management. 91

Division 2--Parole Clause 104 makes a consequential amendment to the Note at the foot of section 3B(3) of the Children, Youth and Families Act 2005. Clause 105 inserts new provisions into Division 5 of Part 5.5 of the Children, Youth and Families Act 2005, which concerns the Youth Parole Board's power to grant parole, make decisions about parole conditions and cancel parole. New section 457A limits the Youth Parole Board's ability to consider terrorism risk information, for the purposes of making a decision under Division 5 of Part 5.5 of the Children, Youth and Families Act 2005, in the same way as described at clause 102 above. Where the terrorism risk information concerns a person's association with a person or group connected to terrorism, the Youth Parole Board must first be satisfied that the person knew of the other person or group's terrorism connection. New section 457B provides that the Secretary to the Department of Justice and Regulation may provide the Youth Parole Board with terrorism risk information regarding a person about whom the Board may make a determination or order under Division 5 of Part 5.5 of the Children, Youth and Families Act 2005. The first note to section 457B clarifies that other sections of Division 5 of Part 5.5 impose certain requirements as a consequence of the Secretary providing terrorism risk information to the Youth Parole Board under section 457B. This is referring specifically to the Youth Parole Board's ability to consider terrorism risk information for the purposes of making a determination or order under new section 458(1AAD) (whether to grant parole) and under new section 460C (whether to cancel parole). The second note to section 457B refers to the ability for the Secretary of the Department of Justice and Regulation and its employees to provide terrorism risk information to the Youth Parole Board under new section 492D and notes that new sections 458(1AAD) and 460C only apply as a result of a disclosure under section 457B. In effect, new section 492D enables the sharing of terrorism risk information among those responsible for managing young people in the youth justice system to better inform their decisions about how they manage these young people. This includes the Youth Parole Board's 92

power to make transfer decisions under Part 5.6 of the Children, Youth and Families Act 2005. New Section 457B also enables the Secretary of the Department of Justice and Regulation to provide terrorism risk information to the Youth Parole Board. However, this section is more specific in that the Youth Parole Board can only consider terrorism risk information in determining whether to grant parole under section 458(1AAD) or whether to cancel parole under section 460C if that information was specifically provided to the Board under section 457B. Clause 106 inserts new section 458(1AA), (1AAB), (1AAC) and (1AAD) into the Children, Youth and Families Act 2005. New subsection (1AA) provides that if the Secretary to the Department of Justice and Regulation has provided the Youth Parole Board with terrorism risk information about a person under new section 457B, before considering whether to release that person on parole, the Board must first determine whether it is satisfied that there is a risk that the person will commit a terrorism or foreign incursion offence. The Secretary will need to provide terrorism risk information to the Youth Parole Board under section 457B, and not section 492B, for section 458(1AA) to apply. New subsection (1AAB) provides that new subsection (1AA) does not apply in relation to a decision of the Youth Parole Board about whether to release a person on parole where that person has a terrorism record or is charged with a terrorism or foreign incursion offence. In that situation, it will not matter whether the Secretary to the Department of Justice and Regulation has provided the Youth Parole Board with terrorism risk information under new section 457B, the presumption against parole set out in new section 458(1AAD) will automatically apply. This is discussed in further detail below. New subsection (1AAC) provides that a presumption against parole applies to a person with a terrorism record, a person charged with a terrorism or foreign incursion offence, or where the Youth Parole Board has determined the person poses a risk of committing a terrorism or foreign incursion offence. 93

New subsection (1AAD) prevents the Youth Parole Board from releasing a person convicted of a terrorism or foreign incursion offence on parole unless it is satisfied there are exceptional circumstances. In the case of a person subject to a terrorism- related order (currently or previously), charged with a terrorism or foreign incursion offence, or assessed by the Board as posing a risk of committing a terrorism or foreign incursion offence, the Board must be satisfied there are compelling reasons for releasing them on parole. The Bill does not define exceptional circumstances or compelling reasons. These terms should be understood in accordance with existing common law. What constitutes exceptional circumstances or compelling reasons will depend on the individual circumstances of the case. Clause 107 amends section 460(1) to refer to the new provisions providing for the cancellation of parole inserted by clause 108. Clause 108 inserts new sections 460A, 460B and 460C into the Children, Youth and Families Act 2005. New section 460A creates a presumption in favour of cancelling a person's parole where they are charged with a terrorism or foreign incursion offence while on parole and that person already has a terrorism record or was released on parole after the Youth Parole Board determined that there was a risk the person would commit a terrorism or foreign incursion offence under section 458(1AA). New section 460B creates a presumption in favour of cancelling a person's parole where they come to have a terrorism record while on parole (that is, they are convicted of a terrorism or foreign incursion offence or become subject to a terrorism-related order). New section 460C creates a presumption in favour of cancelling a person's parole where the Youth Parole Board receives terrorism risk information about a person who is on parole. In the case of a person who was released on parole after the Youth Parole Board determined that there was a risk that the person would commit a terrorism or foreign incursion offence under section 458(1AA) or who had a terrorism record when released on parole, the presumption in favour of parole cancellation applies if the risk that the person will commit a 94

terrorism or foreign incursion offence has increased. In any other case, the presumption in favour of parole cancellation applies if there is a risk that the person will commit a terrorism or foreign incursion offence. Despite these presumptions in favour of cancellation of parole, the Youth Parole Board is not required to cancel a person's parole if satisfied that there are exceptional circumstances (in the case of a person convicted of a terrorism or foreign incursion offence) or compelling reasons (in all other cases) justifying the continuation of a person's parole. Clause 109 inserts a new Note at the foot of section 492D of the Children, Youth and Families Act 2005 to refer to the power of the Secretary to the Department of Justice and Regulation to disclose terrorism risk information to the Youth Parole Board under new section 457B. Division 3--Transitional provisions Clause 110 inserts new section 630 into the Children, Youth and Families Act 2005 to set out the transitional arrangements for the youth parole reforms in the Bill. New section 630 confirms that the reforms made by Division 2 of Part 4 of the Bill will apply to the Youth Parole Board's making of a parole decision about a young person under Part 5.5 of the Children, Youth and Families Act 2005, irrespective of whether the Board began to exercise a power under Part 5.5 before the Bill's commencement. Similarly, the new cancellation of parole provisions inserted by clause 108 will apply to the parole of a person regardless of whether parole was granted before the commencement of that section. Division 4--Miscellaneous Clause 111 amends a minor typographical error. Clause 112 amends the definition of Category A serious youth offence in the Children, Youth and Families Act 2005 to include certain State and Commonwealth terrorism offences within that definition. This definition reflects the definition of terrorism or foreign incursion offence inserted by clause 80 into the Bail Act 1977 and by clause 118(2) into the Corrections Act 1986. The new definition of Category A serious youth 95

offence is also updated by clauses 132 and 133 in the Criminal Procedure Act 2009 and the Sentencing Act 1991 respectively. Clause 113 makes consequential amendments to section 483(1A) of the Children, Youth and Families Act 2005 clarify when a person detained in a remand centre, youth residential centre or youth justice centre under a preventative detention order ceases to be in the custody of the Secretary. Part 5--Amendment of Corrections Act 1986 Division 1--Information sharing Clause 114 amends definitions in section 104ZX of the Corrections Act 1986. Subclause (1) adds additional Acts to the definition of Corrections-related legislation and subclause (2) substitutes a new definition of relevant person. Section 104ZX provides definitions for the purposes of Part 9E of the Corrections Act 1986, which concerns the use and disclosure of information. Part 9E authorises a relevant person to use or disclose personal or confidential information, including information about a current or former prisoner or offender, in specified circumstances. For example, personal or confidential information may be used or disclosed if reasonably necessary for the performance of the official duties of a relevant person, or for the performance of law enforcement functions or duties (section 104ZY(1)(a)-(b) of the Corrections Act 1986). Under section 104ZX, official duties is defined to include the administration of Corrections-related legislation, among other duties. Subclause (1) adds 4 Acts to the definition of Corrections-related legislation in section 104ZX. This includes the Crimes Act 1958, the Terrorism (Community Protection) Act 2003, the Crimes Act 1914 of the Commonwealth and the Criminal Code Act 1995 of the Commonwealth. The effect of this amendment is that a relevant person will be authorised to use or disclose personal or confidential information where that use or disclosure is reasonably necessary to administer one of those Acts. For example, information may be used or disclosed if reasonably necessary for the purposes of a preventative detention order under the Terrorism (Community Protection) Act 2003. This ensures that a relevant person can use or disclose 96

information where reasonably necessary for counter-terrorism purposes, including but not limited to the performance of law enforcement duties or functions relating to counter-terrorism. Subclause (2) substitutes a new definition of relevant person in section 104ZX to mean a person specified in an item of new Schedule 5 of the Corrections Act 1986 as inserted by clause 117 of the Bill. Only relevant persons are authorised to use or disclose information under Part 9E of the Corrections Act 1986. As noted above, information may also be disclosed if reasonably necessary for the performance of a relevant person's official duties. The current definition of a relevant person includes 33 persons comprising of relevant staff of Victorian and Commonwealth government departments and agencies. For example, it includes the Secretary and employees of the Department of Justice and Regulation, and a member or the secretary of the Adult Parole Board. Under the substituted definition, a relevant person will mean a person specified in an item of Schedule 5. Schedule 5, which is inserted by clause 117 of the Bill, lists all of the existing persons included in the current definition of a relevant person, as well as additional persons to that definition. This amendment supports the Expert Panel's recommendations (Recommendation 8). Clause 115 amends section 104ZY of the Corrections Act 1986, which specifies circumstances in which the use or disclosure of personal or confidential information is authorised. Subclause (1) amends section 104ZY(2)(a)(i) of the Corrections Act 1986 to authorise a relevant person to use or disclose personal or confidential information if they believe on reasonable grounds that the use or disclosure is necessary to reduce the risk of a person committing a terrorism or foreign incursion offence. Subclause (2) corrects a typographical error in section 104ZY(2)(di) of the Corrections Act 1986. Subclause (3) amends section 104ZY(2)(k) of the Corrections Act 1986 to update the reference to the Commonwealth Department of Immigration and Border Protection. That Department has now been subsumed by the Commonwealth Department of Home Affairs in accordance with amendments to the Commonwealth 97

Government's Administrative Arrangements Order approved on 20 December 2017. Clause 116 amends section 104ZZ(1)(a) of the Corrections Act 1986. Section 104ZZ(1)(a) provides that a relevant person may use or disclose information given to the Adult Parole Board that is not disclosed in a decision of the Board or in any reasons given by the Board for its decision, if the use or disclosure is reasonably necessary for the administration of Corrections legislation. Clause 116 inserts a reference to Corrections-related legislation in section 104ZZ(1)(a). This extends the existing authorisation so that information may be used or disclosed if reasonably necessary to administer Corrections-related legislation. For example, this may include using or disclosing information for the purposes of a bail proceeding, a family violence proceeding, or the deportation of a former prisoner under Commonwealth laws. Clause 117 inserts a new Schedule 5 to the Corrections Act 1986 for the purposes of the substituted definition of a relevant person referred to in clause 114 above. The existing Schedule 4 currently contains a list of terrorism or foreign incursion offences for the purposes of the definition of terrorism or foreign incursion offence in section 3 of the Corrections Act 1986. The definition of terrorism or foreign incursion offence is substituted by clause 118 of the Bill, which means that such offences no longer need to be included in a Schedule to the Corrections Act 1986. The persons listed in new Schedule 5 as relevant persons include all of the persons in the existing definition of a relevant person in section 104ZX of the Corrections Act 1986. Further, the heads and staff of 14 new bodies, and certain people connected to those bodies, are added to the definition of relevant person in the Corrections Act 1986 which will allow information to be used and disclosed by and to these persons and bodies are included in the definition. This includes relevant staff and contractors of various Victorian and Commonwealth departments and agencies, including any employed or engaged by these persons or bodies such as experts or specialists. The new bodies are-- 98

 the Australian Security and Intelligence Organisation, the Australian Crime Commission, the New South Wales Crime Commission and the police force of another State or Territory (noting that persons connected to Victoria Police and the Australian Federal Police are already relevant persons). These bodies have functions that include counter-terrorism and intelligence purposes and law enforcement.  the Victorian Department of Education and Training. Use and disclosure of the information may be relevant to education programs aiming to de-radicalise young people.  the Commonwealth Department of Foreign Affairs and Trade. Use and disclosure of the information may be relevant to passport refusal or cancellation, including on national security grounds.  the Commonwealth Department of Home Affairs, which incorporates the former Department of Immigration and Border Protection. Use and disclosure of the information may be relevant to border security including deportation.  the Commonwealth Department of Human Services. Use and disclosure of the information may be relevant to support and treatment services. The effect of including these persons in the definition of relevant person is that they will be authorised to use or disclose personal or confidential information in specified circumstances. Other relevant persons will also be able to use or disclose information to these relevant persons. For example, a relevant person is authorised to use or disclose information where doing so is reasonably necessary for the performance of the official duties of any other relevant person (section 104ZY(1)(a) of the Corrections Act 1986). This amendment supports the Expert Panel's recommendations (Recommendation 8). 99

Division 2--Parole Clause 118 inserts new definitions into section 3 of the Corrections Act 1986. Section 3 contains definitions for the purposes of that Act. Subclause (1) inserts new definitions of SVOSO division (a transfer of an existing definition in section 74AAB of the Corrections Act 1986 by clause 122 of the Bill); terrorism record, terrorism-related order, terrorism risk information, terrorist act and terrorist organisation. These definitions are necessary for the purposes of new processes and presumptions that are introduced by Division 2 of Part 5 of the Bill in relation to the release of a prisoner on parole (the grant of parole), and the cancellation of parole. The SVOSO division is defined as the Serious Violent Offender or Sexual Offender Parole division of the Adult Parole Board that is established under section 74AAB of the Corrections Act 1986. Section 74AAB(1) establishes the SVOSO division and requires that the SVOSO division consist of the chairperson of the Adult Parole Board and one full-time or part-time member selected by the chairperson, as well as any other members who may be selected by the chairperson from time to time. The definition is being moved by clauses 118 and 122 of the Bill from section 74AAB(1) to section 3 of the Corrections Act 1986 for consistency with other definitions in that Act and due to the new references to the SVOSO division outside section 74AAB. Terrorism record has the meaning given in new section 3A, which is inserted by clause 119 of the Bill. A terrorism-related order is relevant to the definition of terrorism record in clause 119 of the Bill. This term is defined as--  a control order, a continuing detention order or an interim detention order, all within the meaning of Part 5.3 of the Criminal Code of the Commonwealth, or  a preventative detention order, a prohibited contact order, or an order made under a corresponding preventative detention law, all within the meaning of Part 2A of the Terrorism (Community Protection) Act 2003). 100

These orders may impose varying degrees of obligations and restrictions on a person, including in some cases providing for the detention of the person. The orders can be made for various purposes, including purposes connected to terrorism. For example, assisting to prevent a terrorist act or the provision of support for a terrorist act. Terrorism risk information has the meaning given in section 3B. Section 3B is inserted by clause 119 of the Bill. A terrorist act is defined to have the same meaning as in the Terrorism (Community Protection) Act 2003. Section 4(1) of that Act provides that a terrorist act means an action or threat of action where--  the action falls within subsection (2) and not subsection (3)  the action is done or the threat is made with the intention of advancing a political, religious or ideological cause, and  the action is done or the threat is made with the intention of coercing, or influencing by intimidation, an Australian or foreign government (or a part thereof), or intimidating the public or a section of the public. Action falls within subsection (2) if it--  causes death or serious physical harm to a person  causes serious property damage  endangers a person's life (other than the life of the person taking the action)  creates a serious risk to public health or safety, or  seriously interferes with, seriously disrupts, or destroys, an electronic system (including telecommunications or transport systems, among others). Action falls within subsection (3) if it is advocacy, protest, dissent or industrial action and it is not intended to cause death or serious physical harm to a person or to endanger life or create a serious risk to public health or safety. 101

A terrorist organisation is defined to have the same meaning as in Division 102 of the Commonwealth Criminal Code. Under that Division, a terrorist organisation means an organisation that is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act, or an organisation that is specified by the regulations for the purposes of the definition. Subclause (2) substitutes a new definition of terrorism or foreign incursion offence. This is defined to mean an offence against--  Section 4B of the Terrorism (Community Protection) Act 2003. That section makes it an offence to intentionally provide documents or information to another person with the intention of facilitating preparation for, the engagement of a person in, or assistance in a terrorist act.  A provision of another State or Territory that corresponds to section 4B of the Terrorism (Community Protection) Act 2003.  A provision of Subdivision A of Division 72 of Chapter 4 of the Commonwealth Criminal Code, which relates to international terrorist activities using explosive or lethal devices. Subdivision A includes offences which prohibit conduct such as intentionally discharging or detonating an explosive device in a public place intending to cause death or serious harm.  A provision of Part 5.3 of the Commonwealth Criminal Code, which relates to terrorism. Part 5.3 includes a number of offences that prohibit conduct such as engaging in a terrorist act, providing or receiving training connected with terrorist acts, recruiting for a terrorist organisation and financing terrorism.  A provision of Part 5.5 of the Commonwealth Criminal Code, which relates to foreign incursion and recruitment. Part 5.5 includes a number of offences that prohibit conduct such as engaging in hostile activities overseas and recruiting persons to join organisations engaged in hostile activities against foreign governments. 102

 A provision of the Crimes (Foreign Incursions and Recruitment) Act 1978 of the Commonwealth as in force before its repeal. That Act contained similar offences to those now contained in Part 5.5 of the Commonwealth Criminal Code, for example in relation to entering foreign countries to engage in hostile activities. Clause 119 inserts new sections 3A and 3B into the Corrections Act 1986, which define terrorism record and terrorism risk information respectively for the purposes of that Act. Under new section 3A, a person has a terrorism record if the person has been convicted of a terrorism or foreign incursion offence or the person is or has been subject to a terrorism-related order (see definitions of these terms in clause 118 above). Under the Bill, a prisoner who has a terrorism record will be subject to new presumptions in relation to the grant and cancellation of parole. Other prisoners who pose a terrorism risk are also subject to these presumptions in certain circumstances (see clauses 122-124 below). Under new section 3B, terrorism risk information, in respect of a person, means an assessment that there is a risk that the person will commit a terrorism or foreign incursion offence and the information relied on in making that assessment. This assessment may be made by a specified entity, which includes the Australian Crime Commission (which is currently known as the Australian Criminal Intelligence Commission), Victoria Police, the Australian Federal Police, the Australian Security and Intelligence Organisation, the Department of Justice and Regulation, the police force or service of another State or Territory, the Commonwealth Department of Home Affairs (this includes the former Department of Immigration and Border Protection), or a prescribed person or body. These entities include the current members of the Joint Counter Terrorism Teams and other relevant law enforcement and intelligence bodies. These bodies may have relevant information that would assist the Adult Parole Board in making parole decisions about prisoners who pose a terrorism risk. The inclusion of a prescribed person or body also enables regulations to specify that any other additional person or body is also a specified entity for the purposes of terrorism risk information. This may include, for example, other correctional services authorities around Australia. 103

Other bodies may also be prescribed as specified entities as required. There is no requirement for terrorism risk information to be contained in a formal report or to include a formal assessment of risk (for example, based on clinical risk assessment tools). The Adult Parole Board is required to consider any terrorism risk information that it receives in respect of a prisoner when making parole decisions about that prisoner, including decisions concerning the grant and cancellation of parole (see clauses 121-124). New section 3B(3) provides examples of, but does not limit, the kind of information that may be relied on in assessing a prisoner's risk of committing a terrorism or foreign incursion offence. This includes information that the prisoner has expressed support for terrorism, whether in public or in private, or has associated with a person or group connected to terrorism. Other information may also be relevant depending on the circumstances and may be included in terrorism risk information. The note to new section 3B explains that the Adult Parole Board is prevented from having regard to information regarding a person's association with persons or groups connected to terrorism unless the person knew of the relevant terrorism connection. See further discussion of this matter under clause 121 below. Clause 120 inserts a new section 70(4) into the Corrections Act 1986 to confer on the Secretary of the Department of Justice and Regulation a power to provide the Adult Parole Board with terrorism risk information in respect of a prisoner. In practice, this power may be delegated to other employees of the Department of Justice and Regulation (see section 8 of the Corrections Act 1986). Clause 121 amends section 74 of the Corrections Act 1986. Section 74 gives the Adult Parole Board the power to order that a prisoner be released into the community on parole and to set the terms and conditions of parole. Subclause (1) amends section 74(1) of the Corrections Act 1986 to provide that the general power to grant parole is subject to new section 74AAC. New section 74AAC, which is inserted by clause 123, prohibits an ordinary division of the Adult Parole 104

Board from granting parole to a prisoner if satisfied that the prisoner poses a risk of committing a terrorism or foreign incursion offence. Only the SVOSO division can grant parole to such prisoners. Subclause (2) inserts new subsections (1AAB) and (1AAC) into section 74 of the Corrections Act 1986. New subsection (1AAB) requires the Adult Parole Board to have regard to any terrorism risk information that it has received from the Secretary of the Department of Justice and Regulation when deciding whether or not to grant parole to a prisoner. If no terrorism risk information has been provided under section 70(4), this subsection will have no application. New subsection (1AAB) applies to any division of the Adult Parole Board that is granting parole, including the SVOSO division. This includes decisions made by the SVOSO division to grant parole to a prisoner who poses a terrorism risk. The requirement to consider terrorism risk information is in addition to the existing requirement for the Adult Parole Board to have regard to the record of the court in relation to the prisoner's offending when determining whether or not to grant parole (see section 74(1AA) of the Corrections Act 1986). New subsection (1AAC) applies if the terrorism risk information received includes information that a prisoner has, or has had, an association with a person or group connected to terrorism. The Adult Parole Board is prevented from having regard to such information unless satisfied that the prisoner knew of the person or group's terrorism connection. In effect, this requires the Adult Parole Board to first consider the information regarding the prisoner's association with a person or group connected to terrorism and determine whether it is satisfied that the prisoner knew of the person or group's terrorism connection. If the Adult Parole Board is satisfied as to this, the Board must have regard to that aspect of the terrorism risk information in addition to any other relevant material that would ordinarily be considered in making parole decisions. However, if the Adult Parole Board is not satisfied that the prisoner knew of the person or group's terrorism connection, the Adult Parole Board is prevented from having regard to that aspect of the terrorism risk information. This ensures that only intentional associations with persons and groups connected to terrorism are considered in determining whether to grant parole to the prisoner. Inadvertent or incidental associations will not be considered. However, this does not 105

prevent the Adult Parole Board from having regard to other aspects of the terrorism risk information, for example information that the prisoner has expressed support for terrorist acts or organisations. This amendment and clause 122 implement the Expert Panel's recommendations (Report 1--recommendations 3-4 and 7). Clause 122 makes a number of amendments to section 74AAB of the Corrections Act 1986. Section 74AAB concerns the SVOSO division of the Adult Parole Board. In effect, it currently requires the adoption of a two-tier decision-making process by the Adult Parole Board in relation to decisions to grant parole to specified prisoners, including prisoners applying for parole in respect of a serious violent offence or a sexual offence. This two-tier process ensures that greater scrutiny is applied to the appropriateness of granting parole to those prisoners. These prisoners will only be able to be granted parole by the SVOSO division of the Adult Parole Board, as overseen by the Chairperson. In summary, clause 122 extends this two-tier process to prisoners who have a terrorism record, prisoners who are charged with a terrorism or foreign incursion offence, and other prisoners who the Adult Parole Board has determined pose a risk of committing a terrorism or foreign incursion offence. The clause also introduces a presumption against the grant of parole for such prisoners. This implements the Expert Panel's recommendations (Report 1--recommendations 3-4 and 7). Subclause (1) amends the heading to section 74AAB of the Corrections Act 1986 to reflect the SVOSO division's expanded role in relation to prisoners who have a terrorism record and other prisoners who pose a risk of committing a terrorism or foreign incursion offence. Subclause (1A) omits the phrase SVOSO division from section 74AAB(1) of the Corrections Act 1986. This omission is necessary due to the definition of SVOSO division being moved from section 74AAB(1) to section 3 of the Corrections Act 1986 under clause 118. Subclause (2) substitutes a new section 74AAB(2) of the Corrections Act 1986, which sets out the functions of the SVOSO division. New paragraph (a) confirms the existing 106

function of the SVOSO division in deciding whether or not to grant parole to a prisoner in respect of a sexual offence or a serious violent offence or a terrorism or foreign incursion offence. New paragraphs (b)-(d) confer on the SVOSO division the function of deciding whether or not to grant parole--  to any prisoner who has a terrorism record (this confirms existing practice in relation to prisoners who have been convicted of a terrorism or foreign incursion offence, and extends the practice to prisoners who are or have been subject to a terrorism-related order);  to a prisoner is charged with a terrorism or foreign incursion offence, where that charge has not yet been finally determined by the court; and  to a prisoner following a referral under new section 74AAC (referrals are made where the Adult Parole Board determines that a prisoner poses a risk of committing a terrorism or foreign incursion offence-- see clause 123). In relation to prisoners with a terrorism record, prisoners charged with a terrorism or foreign incursion offence, and prisoners referred to the SVOSO division, the SVOSO division will be responsible for deciding whether or not to grant parole to the prisoner in respect of any offence. The prisoner does not need to be serving a sentence of imprisonment with a non-parole period in respect of an offence that is connected to terrorism. The fact that the prisoner has a terrorism record, is charged with a terrorism or foreign incursion offence or has been referred to the SVOSO division is sufficient to require the application of the two-tier decision-making process. Subclause (2) also inserts a new section 74AAB(2A) into the Corrections Act 1986. New section 74AAB(2A) gives the SVOSO division the additional function of deciding whether or not to revoke the cancellation of parole under section 77(6). Section 77(6), as amended by clause 124, provides for the automatic cancellation of parole upon conviction of a sexual offence, a violent offence, or a terrorism or foreign incursion offence. Under the amendments made by clause 125 (see below), only the SVOSO division will be able to revoke the automatic cancellation of parole. 107

Subclause (3) amends section 74AAB(3) of the Corrections Act 1986 to confirm that only the SVOSO division can grant parole to specified prisoners in line with the SVOSO division's expanded functions described above. Subclause (5) preserves the existing test under section 74AAB(5) of the Corrections Act 1986 in relation to the grant of parole to prisoners in respect of a sexual offence or a serious violent offence. Section 74AAB(5) currently provides that the SVOSO division is only able to grant parole to such prisoners if another division of the Adult Parole Board has recommended that parole be granted and the SVOSO division has considered that recommendation. Note that if another division does not recommend the grant of parole, parole is denied and the SVOSO division is not required to consider the parole application. Subclause (6) inserts a new section 74AAB(5A) into the Corrections Act 1986. The effect of this is to establish the two-tier process and create a presumption against the grant of parole for prisoners with a terrorism record, prisoners charged with a terrorism or foreign incursion offence, and other prisoners who the Adult Parole Board has determined pose a risk of committing a terrorism or foreign incursion offence. New subsection (5A) provides that the SVOSO division can only grant parole to such prisoners if--  another division of the Adult Parole Board has recommended the grant of parole and the SVOSO division has considered that recommendation (this is consistent with the current two-tier test applied by the SVOSO division), and  the SVOSO division is satisfied that there are exceptional circumstances that justify granting parole (if the prisoner has at any time been convicted of a terrorism or foreign incursion offence), or that there are compelling reasons that justify granting parole (for other prisoners). The Bill does not define exceptional circumstances or compelling reasons. These terms should be understood in accordance with existing common law. What constitutes exceptional circumstances or compelling reasons will depend on the individual circumstances of the case. 108

Subclause (7) amends section 74AAB(6) of the Corrections Act 1986, which requires the SVOSO division, when making decisions about a prisoner, to be constituted by members who did not make the initial recommendation for parole to be granted. The effect of the amendment is to confirm that this requirement also applies in relation to prisoners with a terrorism record, prisoners charged with a terrorism or foreign incursion offence, and other prisoners who pose a terrorism risk. Subclause (8) amends section 74AAB(7) of the Corrections Act 1986 to confirm the power of the SVOSO division to refuse to grant parole to a prisoner, notwithstanding that another division has recommended that parole be granted. Clause 123 inserts a new section 74AAC into the Corrections Act 1986. New section 74AAC establishes a process for referring to the SVOSO division of the Adult Parole Board the decision to grant parole to a prisoner whom another division has determined poses a risk of committing a terrorism or foreign incursion offence. This is to ensure that such prisoners are subject to the two-tier decision-making process in relation to the grant of parole, and the presumption against the grant of parole, consistently with prisoners who have a terrorism record. New section 74AAC only applies if the Secretary to the Department of Justice and Regulation has provided terrorism risk information in respect of a prisoner to a division of the Adult Parole Board that is considering whether or not to grant parole to that prisoner. If no terrorism risk information has been provided, normal parole processes will apply. New section 74AAC does not apply if the prisoner has a terrorism record. This is because these prisoners will automatically be subject to the two-tier process by virtue of clause 122 (that is, regardless of whether terrorism risk information has been provided to the Adult Parole Board in respect of the prisoner). New section 74AAC(2) requires the initial division of the Adult Parole Board, prior to grant parole to the prisoner, to determine whether or not it is satisfied that there is a risk that the prisoner will commit a terrorism or foreign incursion offence. The provision does not specify that the risk needs to be a substantial one. 109

New sections 74AAC(3) and (4) require the initial division to have regard to the terrorism risk information that it has received when assessing whether or not the prisoner poses a terrorism risk. However, if the terrorism risk information includes information that a prisoner has, or has had, an association with a person or group connected to terrorism, the initial division must first determine whether it is satisfied that the prisoner knew of the relevant person or group's connection to terrorism. If the initial division is not satisfied of this, the division must not have regard to that aspect of the terrorism risk information. Other aspects of the terrorism risk information can still be considered. As discussed under clause 121 above, this ensures that only intentional associations with persons and groups connected to terrorism are considered in determining a prisoner's risk. The initial division must also consider the record of the court in relation to the prisoner's offending, including the judgment and sentencing remarks. This confirms the current practice of the Adult Parole Board. Sentencing remarks outline the court's assessment of the nature and gravity of a prisoner's offending and may assist the Adult Parole Board in determining a prisoner's risk to the community. This is consistent with other requirements in the Corrections Act 1986, including decisions under sections 74, 74AAA, 74AABA and 78. New sections 74AAC(5) and (6) set out the referral process to the SVOSO division. If satisfied that a prisoner poses a risk of committing a terrorism or foreign incursion offence, the initial division is prevented from granting parole to the prisoner. Instead, it must refer the matter to the SVOSO division for determination. However, a referral is only required if the initial division recommends that parole be granted and is satisfied that there are exceptional circumstances that justify the grant of parole (for a prisoner who has been convicted of a terrorism or foreign incursion offence) or compelling reasons that justify the grant of parole (for other prisoners). This means that both the initial division and the SVOSO division of the Adult Parole Board are applying the same standard when making parole decisions. The initial division also has the ability to refuse parole, in which case parole is denied and the SVOSO division is not required to consider the matter. 110

New subsection (7) confirms that the section applies regardless of when the prisoner was sentenced to imprisonment. Clause 124 makes a number of amendments to section 77 of the Corrections Act 1986. Section 77 provides the Adult Parole Board with a broad discretion to cancel a prisoner's parole at any time before the end of the parole period for any lawful reason. The effect of cancelling parole is that the prisoner is returned to prison to serve the remainder of their sentence of imprisonment. The amendments made by clause 124 introduce new presumptions in favour of the cancellation of parole, implementing the recommendations of the Expert Panel (Report 1--recommendation 5). Subclause (1) amends section 77(2) of the Corrections Act 1986. Section 77(2) requires the Adult Parole Board to consider whether to cancel a prisoner's parole, or vary the terms and conditions of parole, if the prisoner is charged with an offence that is punishable by imprisonment and that is alleged to have been committed during the parole period. The amendment confirms that this requirement is subject to the presumption in favour of cancellation in new section 77(3A), which is inserted by subclause (3) below. The requirement is also subject to the existing presumption in favour of the cancellation of parole in section 77(3) of the Corrections Act 1986. Subclause (2) substitutes a new section 77(3)(a) of the Corrections Act 1986. This preserves the existing presumption in favour of the cancellation of parole for prisoners who are released on parole in respect of a serious violent offence or a sexual offence. If such prisoners are charged with a sexual offence, a violent offence or a terrorism or foreign incursion offence that is punishable by imprisonment and is alleged to have been committed during the parole period, there is a presumption in favour of the cancellation of parole. The Adult Parole Board can only order the continuation of parole if satisfied that circumstances exist that justify the continuation of parole. This presumption currently also applies to prisoners who have a terrorism record by virtue of having been convicted of a terrorism or foreign incursion offence. However, such prisoners will instead be subject to the presumption in new subsection (3A), outlined below. This is to ensure that all prisoners who pose a terrorism risk are treated consistently under the Bill. 111

Subclause (3) inserts new subsections (3A)-(3H) into section 77 of the Corrections Act 1986, to introduce new presumptions in favour of the cancellation of parole. New subsection (3A) applies to a prisoner who has a terrorism record or a prisoner who was released on parole following a referral under new section 74AAC. If the prisoner is charged with a sexual offence, a violent offence or a terrorism or foreign incursion offence that is alleged to have been committed during the parole period, there is a presumption in favour of the cancellation of parole. The Adult Parole Board can only order the continuation of parole if satisfied that the applicable threshold under new subsection (3H) is met. That threshold is that there must be exceptional circumstances (for a prisoner who has been convicted of a terrorism or foreign incursion offence) or compelling reasons (for other prisoners) which justify the continuation of parole. The Adult Parole Board is required to have regard to any terrorism risk information that is provided under section 70(4) when determining whether this threshold is satisfied in the circumstances. New subsections (3B) and (3C) apply where the Adult Parole Board is satisfied that a prisoner on parole has comes to have a terrorism record while on parole. For example, the prisoner may be made subject to a terrorism-related order for the first time while on parole. These subsections do not apply to a prisoner who had a terrorism record at the time of their release on parole. This is because such prisoners will have already been subject to a presumption against parole under the amendments made by clause 122. New subsection (3B) requires the Adult Parole Board to consider whether to cancel the parole of such prisoners, or vary the terms and conditions of their parole order. This is subject to the presumption in favour of cancellation in new subsection (3C), which requires the Adult Parole Board to cancel the prisoner's parole unless satisfied that the applicable threshold is met, namely that there are exceptional circumstances (for a prisoner who has been convicted of a terrorism or foreign incursion offence) or compelling reasons (for other prisoners) which justify the continuation of parole. In determining whether the Adult Parole Board is satisfied that there are exceptional circumstances or compelling reasons to rebut the presumption, the Adult Parole Board is required to have regard to any terrorism risk information 112

that has been provided by the Secretary to the Department of Justice and Regulation under section 70(4). New subsections (3D) to (3F) apply where the Adult Parole Board receives new terrorism risk information in respect of a prisoner who is on parole. This includes any prisoner on parole and is not limited to a prisoner who has a terrorism record or a prisoner who the Adult Parole Board has previously determined pose a risk of committing a terrorism or foreign incursion offence. For example, the terrorism risk information may be provided in relation to a prisoner with no previous connection to terrorism. The subsections only apply where the terrorism risk information contains new information that the Adult Parole Board has not previously received and considered. New subsection (3D) requires the Adult Parole Board, upon receipt of the new terrorism risk information, to consider whether to cancel the prisoner's parole, or to vary the terms and conditions of their parole order. New subsection (3E) contains presumptions in favour of parole cancellation. It requires the Adult Parole Board to cancel the parole of the following prisoners if satisfied that, during the parole period, there has been an increase in the prisoner's risk of committing a terrorism or foreign incursion offence--  a prisoner who was granted parole following a referral under new section 74AAC (see clause 123), or  a prisoner who had a terrorism record when granted parole, and who was subject to the new presumption against the grant of parole (see clause 122). The Adult Parole Board is also required to cancel the parole of any other prisoner if satisfied that there is a risk that the prisoner will commit a terrorism or foreign incursion offence. This provides a presumption in favour of the cancellation of parole for prisoners who pose a risk of committing a terrorism or foreign incursion offence for the first time while on parole. For example, a prisoner with no previous terrorism connection who becomes radicalised while on parole. 113

In determining whether a prisoner poses a risk (or increased risk) of committing a terrorism or foreign incursion offence, the Adult Parole Board must have regard to the terrorism risk information provided in respect of the prisoner. The presumptions in new subsection (3E) are rebuttable under new subsection (3F), which enables the Adult Parole Board to order the continuation of parole if satisfied that the applicable threshold is met. As noted above, that threshold is that there are exceptional circumstances (for a prisoner who has been convicted of a terrorism or foreign incursion offence) or compelling reasons (for other prisoners) which justify the continuation of parole. Consistent with new subsections (3A) and (3C), in determining whether there are exceptional circumstances or compelling reasons to rebut the presumption, the Adult Parole Board must have regard to the terrorism risk information that is provided under section 70(4). New subsection (3G) applies if terrorism risk information is considered by the Adult Parole Board under new subsections (3C) to (3F). It that terrorism risk information includes information that a prisoner has, or has had, an association with a person or group connected to terrorism, the Adult Parole Board must determine whether it is satisfied that the prisoner knew of the relevant person or group's connection to terrorism. If the Adult Parole Board is not satisfied of this, it is prevented from having regard to that aspect of the terrorism risk information. Other aspects of the terrorism risk information can still be considered. As discussed under clause 121 above, this ensures that only intentional associations with persons and groups connected to terrorism are considered in making parole decisions. New subsection (3H) provides the applicable threshold for rebutting the presumption in favour of the cancellation of parole under new subsections (3A)-(3F). As noted above, that threshold is that there are exceptional circumstances (for a prisoner who has been convicted of a terrorism or foreign incursion offence) or compelling reasons (for other prisoners) which justify the continuation of parole. Subclause (4) substitutes a new section 77(6) of the Corrections Act 1986. Section 77(6) currently provides for the automatic cancellation of parole for prisoners who are released on parole in respect of a sexual offence, a serious violent offence or a 114

terrorism or foreign incursion offence, where that prisoner is convicted of a sexual offence, a violent offence or a terrorism or foreign incursion offence that was committed during the parole period. This automatic cancellation process currently applies to prisoners who have a terrorism record by virtue of having been convicted of a terrorism or foreign incursion offence. The substituted subsection (6) confirms this existing practice and extends this process to other prisoners with a terrorism record (regardless of whether the prisoner had a terrorism record at the time of release on parole or whether the prisoner came to have a terrorism record while on parole) and prisoners who are released on parole following a referral made under new section 74AAC (referrals are made where the Adult Parole Board determines there is a risk that the prisoner will commit a terrorism or foreign incursion offence--clause 123). This amendment implements the Expert Panel's recommendations (Report 1--recommendations 5 and 7). Clause 125 amends section 77A(2) and inserts a new section 77A(2A) into the Corrections Act 1986. Section 77A currently allows the Adult Parole Board to revoke a cancellation of parole. The effect of a revocation is that the parole order revives and the prisoner is re-released into the community on parole. Section 77A(2) provides that the Adult Parole Board can only revoke a cancellation of parole under section 77(6) if satisfied that exceptional circumstances exist. As noted under clause 124, section 77(6) (as amended) will provide for the automatic cancellation of parole for a prisoner who has a terrorism record and a prisoner who the Adult Parole Board has determined poses a risk of committing a terrorism or foreign incursion offence, upon conviction of a sexual offence, a violent offence, or a terrorism or foreign incursion offence that was committed during the parole period. The effect of clause 125 is that only the SVOSO division will be able to make a decision revoking the automatic cancellation of parole. This is to ensure that the SVOSO division is responsible for all decisions that would result in a prisoner who has a terrorism record or who poses a risk of committing a terrorism or foreign incursion offence being released (or re-released) into the community. The SVOSO division will also make decisions revoking the automatic cancellation of parole for prisoners 115

released on parole in respect of a sexual offence or a serious violent offence. This amendment implements the Expert Panel's recommendations (Report 1--recommendations 5 and 7). Clause 126 repeals Schedule 4 to the Corrections Act 1986. Division 3--Police detention decision amendments Clause 127 amends section 6B of the Corrections Act 1986 to clarify that a person the subject of a preventative detention order detained in a prison ceases to be in the legal custody of the Secretary when a person acting under lawful authority on behalf of the Secretary gives the physical custody of the detained person to a police officer. Clause 128 amends section 6D of the Corrections Act 1986 to clarify that a person transferred into the physical custody of the Chief Commissioner under new section 13AH, 13AT or 13WB of the Terrorism (Community Protection) Act 2003 is deemed to have entered the legal custody of the Chief Commissioner. Clause 129 amends section 6E of the Corrections Act 1986 to clarify that a person ceases to be in the custody of the Chief Commissioner when the person is received into a prison or youth justice facility. Division 4--Transitional provisions Clause 130 inserts a new section 129 into the Corrections Act 1986 to set out the transitional arrangements for the adult parole reforms in the Bill. New section 129 confirms that the reforms made by Division 2 of Part 5 of the Bill will apply to any and all parole applications that have not been determined upon commencement of that Division, regardless of whether the application was made before or after the commencement of that Division. The amendments made by clauses 124 and 125 of the Bill will apply to any parole order in force after the commencement of those provisions, regardless of whether that parole order was made before the commencement of those provisions. 116

Part 6--Amendment of Crimes Act 1958 Clause 131 inserts a new example at the foot of section 462A of the Crimes Act 1958. Section 462A provides a person may use such force not disproportionate to the objective as he believes on reasonable grounds to be necessary to prevent the commission, continuance or completion of an indictable offence or to effect or assist in effecting the lawful arrest of a person committing or suspected of committing any offence. The amendment inserts an example which sets out a scenario in which a police officer or protective services officer uses lethal force on a person to prevent that person from committing an indictable offence that involves causing really serious injury or death because the officer believes on reasonable grounds that it is necessary to use that force for that purpose. The police officer or protective services officer may do so before that offence is committed. This amendment implements the Expert Panel recommendation 1 of Report 1. The Expert Panel recommended that the power to use force be clarified in a way that is consistent with section 462A and that "puts beyond doubt that it applies to pre-emptive action, including lethal force, employed in response to a life threatening act where it may be the last opportunity to effectively and safely intervene". The example is intended to be consistent with section 462A and the law of self-defence, and is not intended to expand or alter the scope of the existing law. Part 7--Amendment of other Acts Division 1--Serious youth offences Clause 132 amends the definition of Category A serious youth offence in section 3 of the Criminal Procedure Act 2009 to include certain State and Commonwealth terrorism offences within that definition. Clause 133 amends the amends the definition of Category A serious youth offence in section 3(1) of the Sentencing Act 1991 to include certain State and Commonwealth terrorism offences within that definition. 117

Division 2--Annual reporting by Commission of Children and Young People Clause 134 inserts new section 23A into the Commission for Children and Young People Act 2012. New section 23A requires the Commission to include in its annual report certain information in relation to the exercise of its functions under new section 4O of the Terrorism (Community Protection) Act 2003 (inserted by clause 8). These new functions include monitoring and promoting the interests of a child detained under a police detention decision or a preventative detention order. Part 8--Repeal of amending Act Clause 135 provides for the repeal of the Act on 1 May 2020. The repeal of the Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984). 118

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