ANTI-TERRORISM BILL (NO. 2) 2005 Explanatory Memorandum
ANTI-TERRORISM BILL (NO. 2) 2005
2004-2005
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
ANTI-TERRORISM BILL (NO. 2) 2005
EXPLANATORY MEMORANDUM
(Circulated by authority of the Attorney-General,
the Honourable Philip Ruddock MP)
ANTI-TERRORISM BILL (NO. 2) 2005
GENERAL OUTLINE
This Bill amends the Criminal Code Act 1995 (the Criminal Code), the Crimes
(Foreign Incursions and Recruitment) Act 1978, the Financial Transactions
Reports Act 1988 (the FTR Act), the Australian Security Intelligence
Organisation Act 1979 (the ASIO Act), the Surveillance Devices Act 2004,
the Administrative Decisions (Judicial Review) Act 1977 (AD(JR) Act) Act,
the Crimes Act 1914 (the Crimes Act), the Migration Act 1958, the Aviation
Transport Security Act 2004, the Proceeds of Crime Act 2002, the Customs
Act 1901, and the Customs Administration Act 1985.
The Bill improves the existing strong federal regime of offences and powers
targeting terrorist acts and terrorist organisations. The Bill is the
result of a comprehensive review of existing federal legislation that
criminalises terrorist activity and confers powers on law enforcement and
intelligence agencies to effectively prevent and investigate terrorism.
The principal features of the Bill are:
. an extension of the definition of a terrorist organisation to enable
listing of organisations that advocate terrorism;
. a new regime to allow for 'control orders' that will allow for the
overt close monitoring of terrorist suspects who pose a risk to the
community;
. a new police preventative detention regime that will allow detention
of a person without charge where it is reasonably necessary to prevent
a terrorist act or to preserve evidence of such an act;
. updated sedition offences to cover those who urge violence or
assistance to Australia's enemies;
. strengthened offences of financing of terrorism by better coverage of
the collection of funds for terrorist activity;
. a new regime of stop, question, search and seize powers that will be
exercisable at airports and other Commonwealth places to prevent or
respond to terrorism;
. a new notice to produce regime to ensure the AFP is able to enforce
compliance with lawful requests for information that will facilitate
the investigation of a terrorism or other serious offence;
. amendments to ASIO's special powers warrant regime;
. amendments to the offence of providing false or misleading information
under an ASIO questioning warrant;
. amendments to authorise access to airline passenger information for
law enforcement and intelligence agencies;
. the creation of a legal basis for the use of video surveillance at
Australia's major airports and on aircraft; and
. additional implementation of FATF Special Recommendations covering
criminalising financing of terrorism, alternative remittance dealers,
wire transfers and cash couriers.
FINANCIAL IMPACT STATEMENT
There is no financial impact flowing directly from the offence provisions
in this Bill.
NOTES ON CLAUSES
General
Unless otherwise indicated, any reference to a 'section', 'subsection' or
'paragraph' in these notes is a reference to a section, subsection or
paragraph in the Criminal Code Act 1995 (the Criminal Code).
Clause 1: Short title
This is a formal clause which provides for the citation of the Bill. This
clause provides that the Bill when passed, may be cited as the Anti-
Terrorism Act (No. 2) 2005.
Clause 2: Commencement
This clause set out when the various parts of the Bill commence.
Sections 1 to 4 of the Bill (the short title, the commencement, the
schedules provision and the review of anti-terrorism laws provision) and
anything in the Bill not covered elsewhere in the table in clause 2 will
commence on the day the Act receives Royal Assent. This is necessary to
ensure the laws are available during the long Summer holiday period.
Schedules 1 and 3 to the Bill amend offences and definitions in the
Criminal Code. Schedule 4 to the Bill amends offences and definitions, and
inserts new powers and offences into the Criminal Code, and Schedules 5 and
6 to the Bill insert new definitions, powers and offences into the Crimes
Act. Items 1 to 21 and item 23 of Schedule 1 and Schedules 3, 4, 5 and 6
to the Bill commence on the day after the day the Act receives Royal
Assent. This is to ensure these important new powers, that are designed to
prevent the commission of a terrorist act or other serious offence, can be
exercised immediately. It is important to have these powers available
during the holiday period which is a time when there are many mass
gatherings.
Item 22 of Schedule 1 to the Bill commences on a single day to be fixed by
Proclamation or, if any of the provision(s) do not commence within the
period of 6 months beginning on the day on which this Act receives the
Royal Assent, they commence on the first day after the end of that period.
It is appropriate that this provision commence by proclamation in the usual
way.
Schedule 2 to the Bill renumbers the provisions in Division 104 in Part 5.4
of the Criminal Code, so a new Division 104 can be inserted into Part 5.3
of the Criminal Code. It commences on the day the Act receives Royal
Assent. This will ensure there is no confusion about the section numbers
for the existing provisions in Division 104 and the new provisions to be
inserted into the new Division 104.
Schedule 7 repeals an existing offence in the Crimes Act 1914 (the Crimes
Act) and replaces it with a new sedition offence in the Criminal Code, and
Schedule 8 would provide a head of power for the use of optical
surveillance devices at airports and on board aircraft. These Schedules
commence on the 28th day after the day the Act receives Royal Assent. This
is to ensure that there is some prior notice before these new provisions,
which include offence provisions, commence.
Items 1, 2, 6, 8, 9, 14, 15 and 18 to 24 of Schedule 9 to the Bill, which
amend the Financial Transaction Reports Act 1988 (the FTR Act) to introduce
a 'disclosure when asked' system for persons who carry negotiable bearer
instruments into or out of Australia, commence on Proclamation, or if any
of the provisions do not commence within the period of 12 months beginning
on the day the Act receives Royal Assent, they commence on the expiry of
12 months and one day from the date of Royal Assent.
The reason for the potential delay of 12 months for the commencement of
these provisions is to allow for a public education campaign to raise
awareness about the implications of the amendments and to enable the
Australian Customs Service and Australian Transaction Reports and Analysis
Centre (AUSTRAC) to put in place appropriate training and system upgrades.
Items 3, 4 and 7 of Schedule 9 to the Bill, which make minor technical and
clarifying amendments to the FTR Act, commence on the day the Act receives
Royal Assent.
Items 5, 10 to 13, 16 and 17 of Schedule 9 to the Bill, which amend the FTR
Act to require customer information to be included with international fund
transfer instructions and provide for the registration of remittance
service providers, commence on Proclamation, or if any of the provisions do
not commence within the period of 6 months, beginning on the day the Act
receives Royal Assent, they commence on the expiry of 6 months and one day
from the date of Royal Assent.
The reason for the potential delay of 6 months for the commencement of
these provisions is to allow for industry to develop processes to meet the
inclusion of customer information requirements with international funds
transfer instructions and for AUSTRAC to implement appropriate systems to
raise public awareness of the new register requirements and to manage this
information.
Items 1 to 25 and 29 to 32 of Schedule 10 to the Bill, which amend the
Australian Security Intelligence Organisation Act 1979 (the ASIO Act) and
customs and migration legislation to give greater powers for security and
intelligence purposes, commence on the day the Act receives Royal Assent.
This is to enable these important new powers to be exercised immediately if
necessary.
Items 26 to 28 of Schedule 10make consequential amendments to the ASIO Act
related to the amendments made by Schedule 4 to the Bill, and therefore
commence at the same time, being the day after the day the Act receives
Royal Assent.
Clause 3: Schedules
This clause makes it clear that the Schedules to the Bill will amend the
Acts set out in those Schedules in accordance with the provisions set out
in each Schedule.
Clause 4: Review of anti-terrorism laws
This clause provides for a review of the amendments made by Schedules 1, 3,
4 and 5 after five years.
Subclause 4(1) provides that the Council of Australian Governments (COAG)
agreed on 27 September 2005 to undertake this review. It was also agreed
that certain equivalent State laws would also be reviewed.
Subclause 4(2) provides that if a copy of a report of this review is made
available to the Attorney-General, he or she must cause a copy of the
report to be laid before each House of Parliament within 15 sitting days
after the report is received.
This clause ensures that the COAG agreement to a five-year review of these
new laws is enshrined in the legislation. It also ensures that any report
on the review of these new laws will be made public.
Schedule 1 - Definition of terrorist organisation etc.
This Schedule adds a further ground for listing terrorist organisations in
regulations made under the Criminal Code, and makes other minor amendments.
Crimes (Foreign Incursions and Recruitment) Act 1978
Item 1
This item removes a reference to the definition of terrorist organisation
in subsection 102.1(1) in the Criminal Code, from paragraph 6(7)(b) of the
Crimes (Foreign Incursions and Recruitment) Act 1978.
Criminal Code Act 1995
Item 2
This item provides that advocate has the meaning provided in new
subsection 102.1(1A). This definition applies only to the new definition
of terrorist organisation in section 102.1. Details on the meaning of
advocate are provided under item 9 below.
Items 3 to 5
These items repeal the definition of Hamas organisation, Hizballah
organisation and Lashkar-e-Tayyiba organisation in subsection 102.1(1).
These three organisations are listed as terrorist organisations under
separate Regulations under the Criminal Code Amendment Regulations 2005.
Accordingly, the definitions are no longer required.
Item 6
This item is an interpretative amendment to the existing definition of
terrorist organisation in section 102.1 of the Criminal Code.
This item clarifies that, when determining whether an organisation
satisfies the definition of a terrorist organisation, it is not necessary
to prove the organisation is preparing, planning, assisting in or fostering
'the' particular terrorist act. It will be sufficient if the prosecution
can show the organisation is preparing, planning, assisting in or fostering
'a' terrorist act.
Item 7
This item makes a technical amendment to paragraph (b) of the definition of
terrorist organisation in subsection 102.1(1).
Item 8
This item repeals paragraphs (c), (d) and (e) from the definition of
terrorist organisation in subsection 102.1(1), which refer to a Hizballah
organisation, a Hamas organisation or a Lashkar-e-Tayyiba organisation.
These three organisations are listed as terrorist organisations under
separate Regulations under the Criminal Code Amendment Regulations 2005.
Item 9
This item inserts a new subsection (1A) after subsection 102.1(1). This
new subsection inserts a definition of advocates as part of a new offence
of 'advocates the doing of a terrorist act'.
The definition is designed to cover direct or indirect advocacy by an
organisation, in the form of counselling, urging and providing instruction
on the doing of a terrorist act. It also covers direct praise of a
terrorist act. 'Organisation' is defined at existing subsection 100.1(1) of
the Criminal Code. It mentions a body corporate or an unincorporated body
whether or not the body is based outside Australia, consists of persons who
are not Australian citizens or is part of a larger organisation. A
'terrorist act' is defined in the same subsections as an action or threat
of action, such as causing death or serious harm, that is done with the
intention of advocating a political, religious or ideological cause, and
done with the intention of coercing government or a section of the public.
The advocacy would need to be about such an act, not generalised support of
a cause.
The definition of advocates is not restricted in terms of the manner in
which the advocacy occurs. It covers all types of communications,
commentary and conduct.
The definition recognises that such communications and conduct are
inherently dangerous because it could inspire a person to cause harm to the
community. This could be the case where it may not be possible to show
that the organisation intended that a particular terrorism offence be
committed or even intended to communicate the material to that particular
person. Accordingly, the definition is not limited to circumstances where
a terrorist act has in fact occurred, but is available whether or not a
terrorist act occurs.
An organisation may advocate the doing of a terrorist act without being a
terrorist organisation, as this new definition captures statements and
conduct in support of previous terrorist acts as well as any prospective
terrorist acts.
Item 10
Existing subsection 102.1(2) of the Criminal Code provides that the
Minister must be satisfied on reasonable grounds that the organisation is
directly or indirectly engaged in, preparing, planning, assisting in or
fostering the doing of a terrorist act (that is, the organisation satisfies
paragraph (a) of the definition of terrorist organisation) before the
Governor-General can make a regulation specifying the organisation as a
terrorist organisation.
This item amends subsection 102.1(2) of the Criminal Code by providing that
the Minister must be satisfied on reasonable grounds that the organisation
either is directly or indirectly engaged in, preparing, planning, assisting
in or fostering the doing of a terrorist act, or advocates the doing of a
terrorist act, whether or not a terrorist act has occurred or will occur
(that is, the organisation satisfies either paragraph (a) of the definition
of terrorist organisation or the new definition of advocating in subsection
102.1(1A)) before the Governor-General can make a regulation specifying the
organisation as a terrorist organisation.
Advocacy may only be a ground for listing an organisation. Unlike other
grounds upon which it can be proved in court in the context of a
prosecution that an organisation is a terrorist organisation, it will not
be possible to prove an organisation is a terrorist organisation on the
grounds of 'advocacy' unless the organisation is listed in the regulations.
Item 11
Existing paragraph 102.1(4)(b) of the Criminal Code provides that if an
organisation is specified in regulations as a terrorist organisation and
the Minister ceases to be satisfied that the organisation is directly or
indirectly engaged in, preparing, planning, assisting in or fostering the
doing of a terrorist act (that is, that the organisation satisfies
paragraph (a) of the definition of terrorist organisation), the Minister
must publish a notice in the Gazette to the effect that the Minister has
ceased to be so satisfied.
This item amends paragraph 102.1(4)(b) of the Criminal Code by providing
that if an organisation is specified in regulations as a terrorist
organisation and the Minister ceases to be satisfied that that the
organisation is either directly or indirectly engaged in, preparing,
planning, assisting in or fostering the doing of a terrorist act, or
advocates the doing of a terrorist act (that is, that the organisation
satisfies paragraph (a) of the definition of terrorist organisation or the
new definition of advocating in subsection 102.1(1A)), the Minister must
publish a notice in the Gazette to the effect that the Minister has ceased
to be so satisfied.
Item 12
This item makes a technical amendment to correct an outdated cross-
reference to section 50 of the Acts Interpretation Act 1901, and replaces
it with the correct reference to section 15 of the Legislative Instruments
Act 2003.
Item 13
Existing subsections 102.1(7) to (16) of the Criminal Code provide for the
circumstances where regulations may specify a Hizballah, Hamas or Lashkar-e-
Tayyiba organisation as a terrorist organisation under paragraphs (c), (d)
and (e) of the definition of a terrorist organisation. Consistent with the
repeal of these paragraphs, this item repeals subsections 102.1(7) to (16)
of the Criminal Code.
Items 14 and 15
These items make technical amendments by deleting references to provisions
that have been repealed.
Item 16
Existing paragraph 102.1(17)(c) of the Criminal Code provides that if an
application is made to de-list a terrorist organisation, the Minister must
consider the de-listing application if it is made on the grounds that there
is no basis for the Minister to be satisfied that the organisation is
directly or indirectly engaged in, preparing, planning, assisting in or
fostering the doing of a terrorist act (that is, the organisation satisfies
paragraph (a) of the definition of terrorist organisation).
This item amends paragraph 102.1(17)(c) of the Criminal Code to provide
that if an application is made to de-list a terrorist organisation, the
Minister must consider the de-listing application if it is made on the
grounds that there is no basis for the Minister to be satisfied that the
organisation is either directly or indirectly engaged in, preparing,
planning, assisting in or fostering the doing of a terrorist act, or
advocates the doing of a terrorist act (that is, that the organisation
satisfies paragraph (a) of the definition of terrorist organisation or the
new definition of advocating in subsection 102.1(1A)).
Item 17 to 20
These items make technical amendments by deleting references to provisions
that have been repealed.
Item 21
This item inserts new section 106.2 which provides that regulations made
before the commencement of the section which were in force before
commencement, continue to have effect after commencement.
A note to this item amends the heading of section 106.1 of the Criminal
Code consistent with the amendments made by this item.
Item 22
This item inserts a new section 106.3 which provides that the amendments
made by Schedule 1 to the Anti-Terrorism Act 2005 apply to offences
committed whether before or after the commencement of this section. This is
justified because the provision merely clarifies what was originally
intended. It is necessary because it will otherwise create an incorrect
implication.
Customs Act 1901
Item 23
This item makes a technical amendment to subparagraph 203DA(1)(c)(i) of the
Customs Act 1901 by omitting a reference to 'the terrorist act' and
substituting 'a terrorist act'.
Schedule 2 - Technical amendments
This Schedule makes technical amendments to renumber certain provisions of
Part 5.4 of the Criminal Code. This is to ensure that additional sections
may be added to Part 5.3 without affecting the sequential numbering from
Part 5.3 through to Part 5.4.
Criminal Code Act 1995
Items 1 and 2
These items renumber the Division of Part 5.4 of the Criminal Code that
deals with offences relating to Harming Australians, and the provisions in
that Division, from Division 104 to Division 115. This creates additional
space for new provisions to be inserted into this Part of the Criminal
Code.
Schedule 3 - Financing terrorism
This Schedule contains amendments to the terrorist financing provisions of
the Criminal Code. The amendments strengthen the existing terrorist
financing offences and confirm Australia's commitment to the principles
behind the Financial Action Task Force on Money Laundering's (FATF's)
Special Recommendations on Terrorist Financing, the International
Convention for the Suppression of the Financing of Terrorism and United
Nations Security Council Resolution 1373. In particular, the proposed
amendments better implement FATF's Special Recommendation II, which was
developed with the objective of ensuring that countries have the legal
capacity to prosecute and apply criminal sanctions to a person who finances
terrorism.
Criminal Code Act 1995
Item 1
Currently, subsections 102.6(1) and (2) of the Criminal Code criminalise
the receiving of funds from, or making funds available to, a terrorist
organisation, whether directly or indirectly. The difference between the
two provisions is that subsection 102.6(1) deals with the situation where
the offender knows the organisation is a terrorist organisation, and
subsection 102.6(2) deals with the situation where the offender is reckless
as to whether the organisation is a terrorist organisation. New subsection
102.6(1) carries a maximum penalty of 25 years imprisonment and subsection
102.6(2) 15 years imprisonment.
'Knowledge' and 'recklessness' are defined in sections 5.3 and 5.4
respectively of the Criminal Code. Section 5.3 provides that a person has
knowledge of a circumstance (in this case that an organisation is a
terrorist organisation) if they are aware that the circumstance exists or
will exist in the ordinary course of events. Section 5.4 provides that a
person is reckless with respect to a circumstance if (a) they are aware of
a substantial risk that the circumstance exists or will exist, and (b)
having regard to the circumstances known to them, it is unjustifiable to
take the risk.
'Terrorist organisation' is defined in section 102.1 of the Criminal Code.
'Funds' are broadly defined in section 100.1 of the Criminal Code, and
cover property and assets of every kind.
This item amends subsections 102.6(1) and (2) by adding a third form of
conduct to these offences for which a person could be prosecuted. The
amendments criminalise the collection of funds for, or on behalf of, an
organisation, whether directly or indirectly, that the person either knows
to be a terrorist organisation (102.6(1)) or is reckless as to whether it
is a terrorist organisation (102.6(2)). The maximum penalties for the
offences under subsections 102.6(1) and (2) will not change.
These amendments are in response to the FATF requirement that the wilful
collection of funds for terrorist organisations be explicitly covered by
terrorist financing offences.
A note at the end of this item amends the heading of section 102.6 of the
Criminal Code consistent with the amendments made by this item.
Item 2
This item repeals subsection 103.1(3) of the Criminal Code, which provides
that extended geographical jurisdiction - category D applies to the
financing terrorism offence in subsection 103.1(1). Subsection 103.1(3)
will be replaced by new section 103.3 (see item 3 below), which will apply
extended geographical jurisdiction - category D to both existing subsection
103.1(1) and new subsection 103.2(1) (also see item 3).
Item 3
Existing subsection 103.1(1) of the Criminal Code makes it an offence to
provide or collect funds being reckless as to whether those funds will be
used to facilitate or engage in a terrorist act. The offence in new
subsection 103.2(1) deals with similar conduct, but explicitly requires
that the funds be made available to or collected for, or on behalf of,
another person. If the person providing or collecting the funds is
reckless as to whether that other person will use the funds to facilitate
or engage in a terrorist act, the offence will be made out.
Recklessness as it applies to a result, as in new subsection 103.2(1) is
defined in subsection 5.4(2) of the Criminal Code. This provision provides
that a person is reckless with respect to a result if they are aware of a
substantial risk that the result will occur, and having regard to the
circumstances known to them it is unjustifiable to take that risk. As
recklessness is a relatively high standard fault element, the proposed
offence will not apply to a person who provides or collects funds believing
those funds will be used for an innocuous purpose, irrespective of whether
the funds are in fact used for a terrorist act.
Terrorist act is defined in subsection 100.1(1) of the Criminal Code.
This amendment is intended to better implement FATF's Special
Recommendation II. Special Recommendation II in part requires that
countries' terrorist financing offences explicitly cover the wilful
provision or collection of funds intending or knowing that they will be
used by an individual terrorist. The other characteristics of Special
Recommendation II already exist under Australian law.
New subsection 103.2(1) carries a maximum penalty of life imprisonment.
This is the same penalty for offences committed under existing section
103.1 of the Criminal Code.
New subsection 103.2(2) ensures consistency with amendments made by
Schedule 1 to this Bill. The effect of this provision is that as long as
the elements of the offence can be proven it does not matter whether a
terrorist act actually occurs, that the funds will be used for a different
terrorist act to that which the offender thought they may be used for, or
that the funds will be used to fund a number of terrorist acts, instead of
just the one act.
New subsection 103.2(1) carries a maximum penalty of life imprisonment.
This is the same penalty for offences committed under existing section
103.1 of the Criminal Code.
This item also inserts new section 103.3, which provides for the
application of extended geographical jurisdiction - category D, as set out
in section 15.4 of the Criminal Code, to offences under Division 103
(existing subsection 103.1(1) and new subsection 103.2(1)). Category D
extended geographical jurisdiction is unrestricted and means that an
offence under one of these provisions is committed whether or not the
conduct constituting the alleged offence or the result of that conduct
occurs in Australia.
Financial Transaction Reports Act 1988
Item 4
Under subsection 16(1A) of the Financial Transaction Reports Act 1988 (FTR
Act), a cash dealer (as defined in subsection 3(1) of that Act) must make a
report to AUSTRAC about any transaction it is involved in that it has
reasonable grounds to suspect is either:
. preparatory to the commission of a financing of terrorism
offence, or
. relevant to the investigation or prosecution of a financing of
terrorism offence.
Currently, paragraph (a) of the definition of 'financing of terrorism
offence' in subsection 16(6) of the FTR Act includes an offence under
section 103.1 of the Criminal Code. This item amends the definition to
include offences committed under section 102.6 (Getting funds to, for or
from a terrorist organisation) or Division 3 (Financing terrorism).
The offence in section 102.6 of the Criminal Code, dealing with providing
funds to or receiving funds from, for, or on behalf of a terrorist
organisation, clearly comes within the ordinary meaning of 'financing of
terrorism offence'. Section 102.6 should have originally been included in
this definition and this amendment corrects this oversight.
The proposed reference to Division 3 of the Criminal Code, rather than just
section 103.1, ensures that the new terrorist financing offence added to
Division 3 by item 3 of this Schedule falls within the definition of
'financing of terrorism offence'.
Schedule 4 - Control Orders and preventative detention orders
Part 1 - Control orders and preventative detention orders
Part 1 of this Schedule amends the Criminal Code to introduce a new
Division 104 to permit the Australian Federal Police to seek, from a court,
control orders for up to 12 months duration on people who pose a terrorist
risk to the community. Part 1 of this Schedule also amends the Criminal
Code to introduce a new Division 105 to permit the Australian Federal
Police to seek, from a senior Police Officer, preventative detention orders
for up to 24 hours, and from a Magistrate or a Judge, continued
preventative detention orders for up to an additional 24 hours, in relation
to people who pose an imminent terrorist risk to the community or who may
destroy evidence.
Criminal Code Act 1995
Definitions - Section 100.1 of the Criminal Code
Items 1 to 23 insert new definitions into subsection 100.1(1) of the
Criminal Code.
Item 1
This item inserts a definition of AFP member which is consistent with the
Australian Federal Police Act 1979. AFP members may apply for preventative
detention orders in compliance with new Division 105 as described below.
Item 2
This item inserts a definition of confirmed control order to mean an order
made under new section 104.16 as described below.
Item 3
This item inserts a definition of continued preventative detention order to
mean an order made under new section 105.12 as described below.
Item 4
This item inserts a definition of control order to mean an interim control
order or a confirmed control order, definitions of which are inserted by
items 9 and 2 respectively.
Item 5
This item inserts a definition of corresponding State preventative
detention law to mean a law of a State or Territory or particular
provisions of a law of a State or Territory that are declared by
regulations to correspond with Division 105 of this Act. COAG agreed on 27
September 2005 that States and Territories would enact laws which would
enable preventive detention for up to 14 days.
Item 6
This item inserts a definition of frisk search which is consistent with the
definition in section 3C of the Crimes Act.
Item 7
This item inserts a definition of identification material, in relation to a
person. The definition includes means of identifying a person but excludes
tape recordings made for the purposes of section 23U or 23V of the Crimes
Act. These sections relate to tape recordings of information when
questioning a person under arrest.
Item 8
This item inserts a definition of initial preventative detention order to
mean an order made under new section 105.8 as described below.
Item 9
This item inserts a definition of interim control order to mean an order
made under new sections 104.4, 104.7 or 104.9 as described below.
Item 10
This item inserts a definition of issuing authority. An issuing authority
relates to preventative detention orders. For an initial preventative
detention order this means a senior AFP member. For continued preventative
detention orders an issuing authority must be a judge of a State or
Territory Supreme Court, a Federal Magistrate, a Judge (Federal or Family
Court), a former judge, or a President or Deputy President of the
Administrative Appeals Tribunal, appointed in accordance with section 105.2
as described below.
Item 11
This item inserts a definition of issuing court. These courts may issue
control orders in accordance with new sections 104.3 to 104.9 and 104.28 or
revoke control orders in accordance with new sections 104.18, 104.19 and
104.20 as described below.
Item 12
This item inserts a definition of Judge. A Judge of a court created by
Parliament may be an issuing authority for the purposes of preventative
detention orders under new Division 105 as described below. This includes
Federal and Family Court Judges and Federal Magistrates.
Item 13
This item inserts a definition of lawyer. A person who is the subject of a
control order is able to contact a lawyer in accordance with new section
104.5 and the lawyer is able to obtain a copy of the control order in
accordance with new sections 104.5 and 104.11. A person who is in
preventative detention is also entitled to a lawyer in accordance with new
section 105.37 and this must be explained to the person as soon as he or
she is taken into custody in accordance with new section 105.28. Their
lawyer is able to obtain a copy of the preventative detention order in
accordance with new section 105.32.
Item 14
This item inserts a definition of a listed terrorist organisation. A
listed terrorist organisation means an organisation that is specified by
the regulations where the Attorney-General is satisfied on reasonable
grounds that the organisation is directly or indirectly engaged in,
preparing, planning, assisting in or fostering the doing of a terrorist act
(whether or not the terrorist act has occurred or will occur). This is in
accordance with paragraph (a) of the definition of terrorist organisation
in section 102.1 of the Criminal Code. In addition, a listed terrorist
organisation means an organisation that is specified by the regulations
where the Attorney-General is satisfied on reasonable grounds that the
organisation advocates the doing of a terrorist act (whether or not a
terrorist act has occurred or will occur). An organisation advocates the
doing of a terrorist act if the organisation directly or indirectly
counsels or urges the doing of a terrorist act, directly or indirectly
provides instruction on the doing of a terrorist act, or directly praises
the doing of a terrorist act (see new subsection 102.1(1A) of the Criminal
Code, explained in item 9 in Schedule 1 above).
Item 15
This item inserts a definition of ordinary search for the purposes of new
section 105.24 which is consistent with the definition in the Crimes Act.
Item 16
This item inserts a definition of police officer. A police officer means
an AFP member or a member (however described) of a police force of a State
or Territory. The phrase 'however described' is intended to ensure that
all State and Territory police officers fall within this definition,
whether they are described as members, officers or employees of the force.
This is necessary to ensure that the AFP can obtain the assistance of State
or Territory police to enforce orders.
Item 17
This item inserts a definition of prescribed authority which has the same
meaning as in Division 3 of Part III of the Australian Security
Intelligence Organisation Act 1979 (the ASIO Act) and is relevant to new
section 105.25. A prescribed authority under the ASIO Act is a retired
federal, State or Territory judge, or a current State or Territory judge,
or a President or Deputy President of the Administrative Appeals Tribunal
who has consented to be appointed by the Minister for the purposes of the
questioning regime under the ASIO Act.
Item 18
This item inserts a definition of preventative detention order to mean an
order under new section 105.8 or 105.12 as described below.
Item 19
This item inserts a definition of prohibited contact order to mean an order
made under new sections 105.15 or 105.16 as described below.
Item 20
This item inserts a definition of seizable item which relates to frisk
searches or ordinary searches in accordance with new sections 105.23 and
105.24. This definition is consistent with the definition under section 3C
of the Crimes Act but also includes items that could be used to contact
another person or to operate a device remotely.
Item 21
This item inserts a definition of senior AFP member. A senior AFP Member,
who may request control orders in accordance with new Division 104, is
defined to mean the Commissioner or Deputy Commissioner of the AFP, or a
member of the AFP of, or above, the rank of Superintendent.
Item 22
This item inserts a definition of superior court. A superior court, which
is relevant to the definition of issuing authority for the purposes of
continued preventative detention orders, means the High Court of Australia,
the Federal Court of Australia, the Family Court of Australia or of a State
or the Supreme Court or District Court (or equivalent) of a State or
Territory. The phrase 'or equivalent' recognises that certain
jurisdictions have alternative names for the middle level of court. It is
not intended to include the equivalent of Magistrates' Courts.
Item 23
This item inserts a definition of tracking device which is consistent with
the definition under the Surveillance Devices Act 2004. Under new section
104.5 a control order may contain a requirement that a person wear a
tracking device.
Item 24
This item inserts a new Division 104 - Control Orders and a new Division
105 - Preventative Detention Orders after Division 103 of the Criminal
Code.
Division 104 - Control orders
Proposed Division 104 of the Criminal Code provides a regime for placing
controls on persons for up to 12 months in the case of adults, and for up
to 3 months in the case of young persons aged between 16 and 18 years, to
protect the community from a terrorist act. Interim control orders can
only be requested by a senior AFP member, and can only be made by a court,
and are reviewed and reconsidered before being confirmed. The Division
lists the types of controls that can be imposed on a person, and provides
for requests for interim control orders and applications for confirming
variation and revocation of those orders, as well as setting out the
safeguards surrounding this new regime.
New Subdivision A - Object of this Division
New section 104.1 - Object of this Division
New section 104.1 sets out the objects of new Division 104, which are to
allow obligations, prohibitions and restrictions to be imposed on a person
by a control order for the purpose of protecting the public from a
terrorist act.
New Subdivision B - Making an interim control order
New section 104.2 - Attorney-General's consent to request a control order
New section 104.2 sets out the process for seeking the consent of the
Attorney-General for an interim control order. Only a senior AFP member
can request an interim control order. It is appropriate that requests for
control orders which have the potential to impose strict conditions on a
person are considered by experienced and senior officers.
New subsection 104.2(1) provides that the request can not be made without
the consent of the Attorney-General. However, the note to subsection
104.2(1) refers to new Subdivision C, which provides that in urgent
circumstances, a senior AFP member may request an interim control order
without first obtaining the Attorney-General's consent.
New subsection 104.2(2) provides that prior to seeking the Attorney-
General's consent, the senior AFP member must either consider on reasonable
grounds that the making of the order would substantially assist in
preventing a terrorist act, or suspect on reasonable grounds that the
person has provided training to, or received training from, a listed
terrorist organisation.
New subsection 104.2(3) provides that, when seeking the Attorney-General's
consent, the senior AFP member making the request must give the Attorney-
General a draft request. The draft request must include:
a) a draft of the interim control order to be requested;
b) a statement of facts as to why the order should be made, including a
statement of any facts known as to why the order should not be made;
c) an explanation as to why each of the obligations, prohibitions and
restrictions should be imposed on the person, including a statement of
any facts known as to why those obligations, prohibitions and
restrictions should not be imposed;
d) the outcomes and particulars of all previous requests for interim
control orders (including whether those orders were confirmed),
applications for variations and revocations of control orders (both
interim and confirmed) and applications for preventative detention orders
in relation to the person and the details (if any) of any detention under
a corresponding State preventative detention law; and
e) any information known about the person's age.
The first note to subsection 104.2(3) indicates that the requirement to
include information known about the person's age is necessary because an
interim control order cannot be requested in relation to a person who is
under 16 years of age (see new section 104.28).
The second note to subsection 104.2(3) indicates that it is an offence to
include information in the draft request that is false or misleading (see
sections 137.1 and 137.2 of the Criminal Code, which provide for the
offences of false or misleading information (section 137.1) and documents
(section 137.2)).
New subsection 104.2(4) provides that the Attorney-General may grant his or
her consent to the request subject to changes to the draft interim control
order.
New subsection 104.2(5) is an avoidance of doubt provision to ensure that a
further request for an interim control order can be made in relation to a
person, even if a request has previously been made in relation to that
person. This applies whether or not the previous request was successful.
For example, if an application is unsuccessful because the issuing court
considers there is insufficient information upon which to make the order,
the AFP member may obtain further information that is relevant to the
making of an order, and may make a further application. In addition, the
provision makes it clear that, when an order expires, there is no
impediment to an AFP member applying for a further order.
New Section 104.3 - Requesting the court to make an interim control order
New section 104.3 provides that, if the Attorney-General consents to the
request under section 104.2, the senior AFP member may then request the
interim control order from an issuing court (the Federal Court, the Family
Court or a Federal Magistrates Court). The issuing court must be provided
with the request, including any changes required by the Attorney-General.
The application must be sworn or affirmed by the senior AFP member, and a
copy of the Attorney-General's consent must be provided to the issuing
court.
The note to section 104.3 indicates that it is an offence to include
information in the draft request that is false or misleading (see sections
137.1 and 137.2 of the Criminal Code, which provide for the offences of
false or misleading information (section 137.1) and documents (section
137.2)).
New Section 104.4 - Making an interim control order
New subsection 104.4(1) provides that the issuing court may make an interim
control order, but only if four conditions are met.
The first condition is that the senior AFP member requested the order in
accordance with the requirements under new section 104.3.
The second condition is that the issuing court has received and considered
such further information (if any) that the court requires before making its
decision.
The third condition is that the issuing court is satisfied on the balance
of probabilities either that making the order would substantially assist in
preventing a terrorist act, or that the person has provided training to, or
received training from, a listed terrorist organisation.
The fourth condition is that the issuing court is satisfied on the balance
of probabilities that each of the obligations, prohibitions and
restrictions to be imposed on the person by the order is reasonably
necessary, and reasonably appropriate and adapted, for the purpose of
protecting the public from a terrorist act (the obligations, prohibitions
and restrictions that may be imposed on a person by a control order are
described in new subsection 104.5(3)).
New subsection 104.4(2) provides that in making a decision under new
subsection 104.4(1), the court must take into account the impact of the
obligations, prohibitions or restrictions on the person's circumstances
(including the person's financial and personal circumstances). This is
designed to ensure an obligation that would, for example, have an adverse
impact on the ability of person to earn a living and support his or her
family must be taken into account before the obligation, prohibition or
restriction is imposed.
New subsection 104.4(3) expressly provides that the issuing court may make
an interim control order which does not have each of the obligations,
prohibitions or restrictions that were requested by the senior AFP member,
if the court is not satisfied that those particular obligations,
prohibitions or restrictions are reasonably necessary, appropriate or
adapted in accordance with new paragraph (1)(d).
This allows the issuing court to ensure that each order will be tailored to
the particular risk posed by the individual concerned. The more onerous an
obligation or stringent a prohibition or requirement, the greater the
burden on the AFP member to satisfy the issuing court that the particular
obligation, prohibition or restriction sought to be imposed on the person
by the order is reasonably necessary, and reasonably appropriate and
adapted, for the purpose of protecting the public from a terrorist act.
New Section 104.5 - Terms of an interim control order
New subsection 104.5(1) sets out the matters that must be included in an
interim control order. An interim control order must:
a) state that the court is satisfied of the matters mentioned in paragraphs
104.4(1)(c) and (d), being that the court is satisfied on the balance of
probabilities that making the order would substantially assist in
preventing a terrorist act or that the person has provided training to,
or received training from, a listed terrorist organisation, and that each
of the obligations, prohibitions and restrictions to be imposed on the
person by the order is reasonably necessary, and reasonably appropriate
and adapted, for the purpose of protecting the public from a terrorist
act;
b) specify the name of the person to whom the order relates;
c) specify all the obligations, prohibitions and restrictions that may be
imposed under new subsection (3) that are to be imposed on the person by
the order;
d) state that the order does not begin to be in force until it is
personally served on the person;
e) specify a day on which the person may attend the court for the court to
confirm the interim control order (with or without variation), declare
the interim control order to be void or revoke the interim control order;
f) specify the period during which the order is to be in force which must
not end more than 12 months after the day on which the order is made; and
g) state that the person's lawyer may attend a specified place in order to
obtain a copy of the order.
The note to new subsection 104.5(1) indicates that for young persons aged
at least 16 years but under the age of 18 years, a control order that is
confirmed must not end more than 3 months after the day on which the
interim control order was made (see new subsection 104.28(2)).
New subsection 104.5(2) makes it clear that paragraph 104.5(1)(f) does not
prevent the making of successive control orders in relation to the same
person. This includes for young persons.
New subsection 104.5(3) lists the types of obligations, prohibitions and
restrictions that the court may impose on a person by a control order,
which are limited to one or more of the following:
a) a prohibition or restriction on the person being at specified areas or
places;
b) a prohibition or restriction on the person leaving Australia;
c) a requirement that the person remain at specified premises between
specified times each day, or on specified days;
d) a requirement that the person wear a tracking device;
e) a prohibition or restriction on the person communicating or associating
with specified individuals;
f) a prohibition or restriction on the person accessing or using specified
forms of telecommunications or other technology (including the Internet);
g) a prohibition or restriction on the person possessing or using specified
articles or substances;
h) prohibition or restriction on the person carrying out specified
activities (including in respect of his or her work or occupation);
i) a requirement that the person report to specified persons at specified
times and places;
j) a requirement that the person allow himself or herself to be
photographed;
k) a requirement that the person allow impressions of his or her
fingerprints to be taken; and
l) a requirement that the person participate in specified counselling or
education.
It is not possible under the legislation to impose an obligation,
prohibition or restriction that is not of a type listed.
The note to new subsection 104.5(3) indicates that new section 104.22
imposes restrictions on the use of photographs or impressions of
fingerprints taken under paragraphs 104.5(3)(j) and (k). This ensures the
photographs and fingerprints are only used for the purpose for which they
were taken - ensuring identification and enforcement of the order.
New subsection 104.5(4) provides that, for the purposes of any restriction
imposed on a person's ability to associate or communicate with a specified
person by an order under new paragraph 104.5(3)(e), the matters outlined in
the association offence in subsection 102.8(4) of the Criminal Code apply
to such communications and associations in the same way. New section
102.8(4) of the Criminal Code provides for exceptions to an offence of
associating with a terrorist organisation. The exceptions under
subsection 102.8(4) include an association with a close family member
relating to a matter of family or domestic concern, an association in a
place used for public religious worship and takes place in the course of
practising a religion, an association for the purposes of providing aid of
a humanitarian nature or an association for the purpose of providing legal
advice or legal representation in connection with certain proceedings as
set out in subparagraphs 102.8(4)(d)(i) to (vi).
New subsection 104.5(5) provides that a person's right to contact,
communicate or associate with the person's lawyer is not affected by this
section, unless the person's lawyer is specified as a person with whom the
person the subject of the control order is not permitted to associate or
communicate with as provided for in new subsection 104.5(3)(e). As is the
case with organised crime, it is not inconceivable that some lawyers may be
directly involved in the organisation of terrorist activity or are capable
of passing on information that could be used to organise a terrorist act.
New subsection 104.5(5) further provides that if the person's lawyer is an
individual who the person is prohibited or restricted from communicating or
associating with under subsection 104.5(3)(e), the person may contact,
communicate or associate with any other lawyer who is not so specified
(under subsection 104.5(3)(e)). That is, there are no restrictions on a
person the subject of a control order contacting, communicating with or
associating with a lawyer who is not listed as a prohibited contact as
provided for by subsection 104.5(3)(e).
New subsection 104.5(6) ensures that if an order made in relation to a
person requires the person to attend counselling or education under a
control order, the person need only attend that counselling or education
if, at the time of attendance, the person agrees to so attend. This
recognises that the benefit of counselling or education can only be
achieved through willing participation. This measure recognises that
control orders can last for a long period and that the individual may be
able to gain some benefit that take them further away from association with
terrorists through appropriate counselling or education. For example, lack
of literacy skills could be holding the person back from general
employment. Opportunities to participate in education programmes could
address this.
Subdivision C - Making an urgent interim control order
New section 104.6 - Requesting an urgent interim control order by
electronic means
New section 104.6 sets out the process for requesting an urgent interim
control order by electronic means. This provision is designed to deal with
the situation where an AFP member experiences difficulty attending at the
location of an issuing court to seek an interim control order.
New subsection 104.6(1) authorises a senior AFP member to make a request to
an issuing court to make an interim control order by telephone, fax or
email. Such requests can only be made if the member considers it necessary
to use such means because of the urgency of the circumstances and the
member must consider on reasonable grounds that the making of the order
would substantially assist in preventing a terrorist act, or suspects on
reasonable grounds that the person has provided training to, or received
training from, a listed terrorist organisation (as provided in new
subsection 104.2(2)).
New subsection 104.6(2) provides that the Attorney-General's consent under
new section 104.2 is not required before the request is made. However, the
note to new subsection (2) indicates that under new section 104.10, if the
Attorney-General's consent is not obtained before the request is made, the
Attorney-General's consent must be obtained within 4 hours of making the
request. Travel within Australia can in some cases make it difficult to
contact the Attorney-General on short notice.
New subsection 104.6(3) provides that the court may require communication
by voice to the extent that it is practicable in the circumstances.
New subsection 104.6(4) requires the request to the issuing court to
include all that is required in an ordinary request for an interim control
order under subsection 104.2(3), including, if the Attorney-General's
consent has been obtained before making the request, the changes, if any,
required by the Attorney-General, an explanation as to why the making of
the order is urgent, and a copy of the Attorney-General's consent, if his
or her consent has been obtained before making the request.
The note to subsection 104.6(4) indicates that it is an offence to include
information in the draft request that is false or misleading (see sections
137.1 and 137.2 of the Criminal Code, which provide for the offences of
false or misleading information (section 137.1) and documents (section
137.2)).
New subsection 104.6(5) requires the information and the explanation
included in the request, including the information as to why the request is
urgent, to be sworn or affirmed by the AFP member. The swearing or
affirming of the information and explanation can occur after the request is
made, but must occur within 24 hours (see new subsection 104.7(5)).
New section 104.7 - Making an urgent interim control order by electronic
means
New section 104.7 sets out the process for an issuing court to make an
urgent interim control order by electronic means.
New subsection 104.7(1) provides that before making an interim control
order in response to a request under section 104.6, the court must consider
the information and the explanation included in the request. In addition,
the court can receive and consider any such further information as the
court requires.
New subsection 104.7(2) provides that if the court is satisfied that an
order should be made, the court may complete the same form of order that
would be made under sections 104.4 and 104.5.
New subsections 104.7(3) to (6) set out the procedure that must be followed
after an urgent interim control order is made.
New subsection 104.7(3) provides that if the court makes the order, the
court must inform the senior AFP member by telephone, fax, email or other
electronic means, of the terms of the order and the day on which and the
time at which, the order was completed.
New subsection 104.7(4) provides that the AFP member must then complete a
form of order in terms substantially corresponding to those given by the
issuing court, stating on the form, the name of the court and the day on
and time at which, the order was completed.
New subsection 104.7(5) provides that within 24 hours of being informed of
the terms of the order and the day on which and the time at which, the
order was completed under new subsection (3), the AFP member must give or
transmit to the court the completed form of order, sworn or affirmed
information and explanation, where that information and explanation
included in the request were not sworn or affirmed before the request was
made to the court, and a copy of the Attorney-General's consent, if his or
her consent was not obtained before making the request.
New subsection 104.7(6) provides that the court must attach to the
documents provided under new subsection (5) the form of order completed by
the court.
New section 104.8 - Requesting an urgent interim control order in person
New section 104.8 sets out the process for requesting an urgent interim
control order in person. This provision is designed to deal with the
situation where an AFP member experiences difficulty obtaining the consent
of the Attorney-General before requesting that the issuing court make an
interim control order.
New subsection 104.8(1) authorises a senior AFP member to make a request to
an issuing court to make an interim control order without first obtaining
the Attorney-General's consent under section 104.2, if the member considers
it necessary to request the order without consent due to the urgency of the
circumstances. The member must also consider on reasonable grounds that
the making of the order would substantially assist in preventing a
terrorist act, or suspects on reasonable grounds that the person has
provided training to, or received training from, a listed terrorist
organisation (as provided in new subsection 104.2(2)). As with urgent
electronic requests under new section 104.6, the Attorney-General's consent
must be obtained within 4 hours of making the request (see new section
104.10).
New subsection 104.8(2) requires the request to include all that is
required in an ordinary request for an interim control order under new
subsection 104.2(3), including information that is sworn or affirmed by the
member, and an explanation that is sworn or affirmed as to why the making
of the interim control order without first obtaining the Attorney-General's
consent is urgent.
The note to new subsection (2) indicates that it is an offence to include
information in the draft request that is false or misleading (see sections
137.1 and 137.2 of the Criminal Code, which provide for the offences of
false or misleading information (section 137.1) and documents (section
137.2)).
New section 104.9 - Making an urgent interim control order in person
New section 104.9 sets out the process for making an urgent interim control
order in person.
As is the case in making an interim control order by electronic means under
new section 104.7, new subsection 104.9(1) provides that before making an
interim control order in response to a request under new section 104.8, the
court must consider the information and the explanation included in the
request and receive and consider any such further information as the court
requires.
New subsection 104.9(2) sets out similar requirements to those for making
an urgent interim control order by electronic means. That is, if the court
is satisfied that an order in the terms of the request should be made, the
court may complete the same form of order that would be made under new
sections 104.4 and 104.5.
New subsection 104.9(3) provides that the member must give or transmit a
copy of the order and either the Attorney-General's consent to request the
order if given, or written notification that this consent was not obtained,
to the issuing court within 24 hours of the order being made under new
subsection 104.9(2).
The note to new subsection (3) indicates that obtaining the Attorney-
General's consent is dealt with by new section 104.10.
New section 104.10 - Obtaining the Attorney-General's consent within
4 hours
This section is relevant to requesting an interim urgent control order
under new sections 104.6 and 104.8.
New subsection 104.10(1) provides that if the Attorney-General's consent to
request an interim control order was not first sought before making a
request for an urgent interim control order under section 104.6 or 104.8,
the senior AFP member must seek that consent within 4 hours of making the
request to the issuing court. The consent must be sought in accordance
with the provisions of subsection 104.2(3).
New subsection 104.10(2) provides that if the Attorney-General refuses
consent or has not given consent to request the order within 4 hours of the
request being made, the order made by the issuing court immediately ceases
to be in force.
The note to subsection 104.10(2) indicates that if the Attorney-General's
consent is refused or not obtained, a senior AFP member can make a new
request and seek the Attorney-General's consent to request a new interim
control order in relation to the person under subsection 104.2(5).
New subsection 104.10(3) provides that if the order ceases to in force
under new subsection (2) due to the Attorney-General's consent not being
obtained, the senior AFP member must, as soon as practicable, notify the
issuing court that the order has ceased to be in force, and if the order
has already been served on the person in relation to whom it was made,
annotate the order to indicate that it has ceased to be in force and cause
the annotated order to be served personally on the person.
New section 104.11 - Court to assume that exercise of power not authorised
by urgent interim control order
New section 104.11 provides that it is material in any proceedings, for a
court to be satisfied that the exercise of a power under or in respect of,
an interim control order made under section 104.7, was duly authorised, and
where the form of order completed by the issuing court is not produced in
evidence, the court hearing the proceedings is to assume that the exercise
of the power was not duly authorised unless the contrary is proved. This
provision places an obligation on the prosecution to produce to the court a
form of the order alleged to have been made by the issuing court.
New Subdivision D - Confirming an interim control order
New section 104.12 - Service, explanation and notification and explanation
of an interim control order
New section 104.12 requires an AFP member to serve the order on the person
subject to the order, and inform the person of the making of a control
order.
New subsection 104.12(1) provides that the AFP member must serve the order
on the person to whom it relates and inform the person of the effect of the
order, the period for which the order (if confirmed) is in force, the
effect of new sections 104.13, 104.14, 104.18, and 104.27 (and new section
104.22 if appropriate), and ensure that the person understands this
information, taking into account the person's age, language skills, mental
capacity and any other relevant factor.
The AFP member is required to serve the order and inform the person of
these matters as soon as practicable after an interim control order is
made, which must be at least 48 hours before the time specified in the
order as the day on which the court is to consider whether to confirm the
interim control order. The order must be served personally on the person
to whom it relates.
In addition to serving the order, the AFP member must serve on the person a
summary of the grounds upon which the order is made. For example, the
summary of the grounds could be that the person is alleged to have engaged
in training with a specified listed terrorist organisation.
New subsection 104.12(2) provides that the requirements under new
paragraphs 104.12(1)(b) and (c) to inform the person of certain matters and
ensure the person understands those matter do not apply if the actions of
the person to whom the interim control order applies has made it
impracticable for the AFP member to comply with those requirements.
New subsection 104.12(3) provides that a failure to ensure that the person
understands the information, as required under paragraph 104.12(1)(c), does
not make the control order ineffective to any extent.
New subsection 104.12(5) provides for the involvement of the Queensland
public interest monitor in the processes for confirming interim control
orders. That provision provides that if the person in relation to whom the
interim control order is made is a resident of Queensland or if the issuing
court made the interim control order in Queensland an AFP member must give
to the Queensland public interest monitor written notice of certain facts.
Those facts are that an interim control order has been made in relation to
the person the subject of the order, the name of the court that made the
order, and the day on which the person the subject of the order has been
advised that he or she may attend the court for the court to confirm, void
or revoke the interim control order.
New section 104.13 - Lawyer may request a copy of an interim control order
New paragraph 104.5(1)(g) provides that an interim control order must
specify a place that a person's lawyer may attend to obtain a copy of the
order. New subsection 104.13(1) authorises a lawyer of the person to whom
an interim control order is made to attend that place in order to obtain a
copy of the order and the grounds on which the order is made.
New subsection 104.13(2) makes it clear that this section does not require
the lawyer to be given a copy of the interim control order or summary by
more than one person, nor does it entitle the lawyer to request or be given
a copy of, or see, a document other than the interim control order or
summary.
New section 104.14 - Confirming an interim control order
New section 104.14 sets out the process by which an interim control order
is confirmed or otherwise ceases. This process occurs on the day specified
in the interim control order under new paragraph 104.5(1)(e).
New subsection 104.14(1) provides that the senior AFP member who requested
the interim control order, one or more other AFP members, the person in
relation to whom the interim control is made and one or more
representatives of the person (which include legal representation), may
adduce evidence (including by calling witnesses or producing material) or
make submissions to the issuing court before the interim control order is
confirmed or otherwise dealt with.
In addition, new subsection 104.14(1) provides that the Queensland public
interest monitor may adduce evidence (including by calling witnesses or
producing material) or make submissions, but only if the interim control
order is made in relation to a resident of Queensland or if the issuing
court made the interim control order in Queensland.
New subsection 104.14(2) provides that subsection 104.14(1) does not limit
the power of the court to control proceedings in relation to the
confirmation of an interim control order.
New subsection 104.14(3) provides that before taking action under section
104.14, the court must consider the original request for the interim
control order, and any evidence adduced, submissions made, and material
produced, under subsection (1) in respect of the order.
New subsection 104.14(4) provides that the court may confirm the order
without variation if neither the person to whom the order relates, or any
representative of that person, has attended court on the specified day, and
it is satisfied that the person to whom the order relates was properly
served with the order.
New subsection 104.14(5) provides that if the person or a representative of
the person attends court, the court may take one of the actions specified
in new subsections 104.14(6) and 104.14(7).
New subsection 104.14(6) provides that the court may declare, in writing,
the order to be void if it is satisfied that, at the time the order was
made, there were no grounds for making the order.
New subsection 104.14(7) provides that if the court does not act under new
subsection 104.14(6), it may either revoke the order if no longer satisfied
that the grounds for making it exist, or confirm the order if satisfied
that the grounds for making it still exist. In this latter scenario, the
court may either vary the obligations, prohibitions or restrictions imposed
by the interim control order if it considers that they are no longer
necessary, or appropriate or adapted, for the reasons expressed, or confirm
the order in the same form as the interim control order.
The note to new subsection 104.14(7) provides that if the court confirms
the order, it must make a new order under new section 104.16.
New section 104.15 - When a declaration, or a revocation, variation or
confirmation of a control order, is in force
New subsection 104.15(1) provides that if the court declares an interim
control order to be void under new subsection 104.14(6), the order is taken
to have never been in force.
New subsection 104.15(2) provides that if the court revokes an interim
control order under new paragraph 104.14(7)(a), the order ceases to be in
force when the court revokes it.
New subsection 104.15(3) provides that if the court confirms the interim
control order with or without variation under new subsection 104.14(4) or
new paragraph 104.14(7)(b) or (c), the interim control order ceases to be
in force, and the confirmed control order begins to be in force, when the
court makes a corresponding confirmed control order under new section
104.16.
New section 104.16 - Terms of a confirmed control order
New subsection 104.16(1) provides that if the issuing court confirms an
interim control order under new section 104.14, it must make a
corresponding confirmed control order which states similar requirements as
those that must be stated in an interim control order.
In particular, the confirmed control order must state the court's
satisfaction of the appropriateness of the order and the obligations,
prohibitions and restrictions that it imposes, specify the person to whom
it relates, specify the obligations, prohibitions and restrictions that it
imposes, specify the period, not being longer than 12 months since the
interim control order was made, for which it is in force, and specify a
place at which a lawyer of the person may attend to obtain a copy of the
order.
The note to new subsection (1) reminds the reader that a confirmed control
order made in relation to a person who is between the ages of 16 and 18 may
not be in force for a period longer than 3 months since the interim control
order was made (see section 104.28).
New subsection 104.16(2) ensures that the 12-month (or 3-month, as
applicable) restriction on the period on which a confirmed control order
may be in force does not prevent the making of successive control orders in
relation to the same person.
New section 104.17 - Service of a declaration, or a revocation, variation
or confirmation of a control order
New section 104.17 provides that as soon as practicable after an interim
control order is declared void, revoked or confirmed (with or without
variation), an AFP member must serve the declaration, revocation or
confirmed control order personally on the person. This is consistent with
the service and notification requirements for interim control orders.
New Subdivision E - Rights in respect of a control order
New section 104.18 - Application by the person for a revocation or,
variation of a control order
New section 104.18 confers rights on a person who is the subject of a
control order to apply to an issuing court to have the order revoked or
varied.
New subsection 104.18(2) provides that the person may make the application
any time after the order is served. This is designed to ensure the person
has the earliest opportunity to seek the removal of the obligations,
prohibitions and restrictions imposed on the person by a control order.
New subsection 104.18(3) requires the person to give written notice to the
AFP Commissioner of both the application and the grounds on which the
revocation or variation is sought. It also requires the person to give
notice to the Queensland public interest monitor, but only if the interim
control order is made in relation to a resident of Queensland or if the
issuing court made the interim control order in Queensland.
New subsection 104.18(4) provides that the Commissioner and one or more
other AFP members, the person in relation to whom the order is made, and
one or more representatives of the person may adduce additional material to
the court in relation to the application.
New subsection 104.18(5) provides that subsection (4) does not limit the
power of the court to control proceedings in relation to an application to
revoke or vary a confirmed control order.
New section 104.19 - Application by the AFP Commissioner for a revocation
or variation
New section 104.19 applies while a control order is in force, and sets out
the circumstances in which the AFP Commissioner must apply to an issuing
court for revocation or variation of the order .
New subsection 104.19(1) requires the Commissioner to make an application
to have the order revoked if the Commissioner is satisfied that the grounds
on which the order was confirmed have ceased to exist, or varied if the
Commissioner is satisfied that the obligations, prohibitions or
restrictions imposed by the order should no longer be imposed on the
person.
New subsection 104.19(2) requires the Commissioner to give written notice
to the person of both the application and the grounds on which the
revocation or variation is sought. In addition, new subsection 104.19(2)
requires the Commissioner to give written notice to the Queensland public
interest monitor, but only if the interim control order is made in relation
to a resident of Queensland or if the issuing court made the interim
control order in Queensland.
New subsection 104.19(3) provides that the Commissioner, one or more other
AFP members, the person, and one or more of his or her representatives,
and, if applicable, the Queensland public interest monitor, may adduce
additional matter to the court in relation to an application.
New subsection 104.19(4) provides that subsection 104.19(3), which provides
that certain persons can adduce material, does not otherwise limit the
power of the court to control proceedings in relation to an application to
revoke or vary a confirmed control order
New section 104.20 - Revocation or variation of a control order
New section 104.20 sets out the powers of the court where an application is
made under new section 104.18 or 104.19.
New subsection 104.20(1) provides that the court may revoke the control
order if the court is satisfied that the grounds for it being made no
longer exist, vary the control order by removing identified obligations,
prohibitions or restrictions if the court is satisfied that the grounds for
the control order still exist but those identified obligations,
prohibitions or restrictions are no longer necessary, or appropriate and
adapted to the purposes of the control order, or dismiss the application if
the court is satisfied that the grounds for the control order still exist
and the obligations, prohibitions or restrictions imposed by it are still
necessary, appropriate and adapted to its purposes.
New subsection 104.20(2) provides that a revocation or variation begins to
have effect when the court revokes or varies the order.
New subsection 104.20(3) provides that an AFP member must serve the
revocation or variation personally on the person as soon as practicable
after a control order is revoked or varied.
New section 104.21 - Lawyer may request a copy of a control order
New section 104.21 is similar to new section 104.13 in that it allows a
lawyer to request a copy of a varied control order in the same manner as
obtaining a copy of an interim control order.
New subsection 104.21(1) authorises a lawyer of the person to whom a
control order which is varied under new section 104.14, 104.20 or 104.24
relates, to attend the place specified in the order under new
paragraph 104.16(1)(e) or 104.25(d) to obtain a copy of the variation
order.
New subsection 104.21(2) makes it clear that this section does not require
the lawyer to be given a copy of the varied control order by more than one
person, nor does it entitle the lawyer to request or be given a copy of, or
see, a document other than the varied control order.
New section 104.22 - Treatment of photographs and impressions of
fingerprints
New subsection 104.22(1) prohibits the use of a photograph or an impression
of fingerprints, taken as part of the terms of a control order under
paragraph 104.5(3)(j) or (k) respectively, for any purpose other than
ensuring compliance with that control order.
Under subsection 104.22(2), if 12 months have elapsed after the control
order ceases to be in force and proceedings in respect of the control order
or the treatment of the person have not been brought or have been brought
and discontinued or completed, the photograph or impression must be
destroyed as soon as practicable after the end of this period.
New subsection 104.22(3) provides that it is an offence to use a photograph
or an impression of fingerprints taken under paragraph 104.5(3)(j) or (k)
for any purpose other than of ensuring compliance with the control order.
The offence carries a maximum penalty of 2 years imprisonment.
New Subdivision F - Adding obligations, prohibitions or restrictions to a
control order
New section 104.23 - Application by the AFP Commissioner for addition of
obligations, prohibitions or restrictions
New section 104.23 authorises the AFP Commissioner to apply to a court to
vary a confirmed control order by imposing additional obligations,
prohibitions or restrictions mentioned in subsection 104.5(3). The
Commissioner can only make such an application if he or she considers on
reasonable grounds that the varied control order would substantially assist
in preventing a terrorist act.
New subsection 104.23(2) requires the Commissioner to give to the court a
copy of the additional obligations, prohibitions or restrictions to be
imposed on the person, an explanation as to why the obligations,
prohibitions or restrictions should be imposed on the person, including any
known facts as to why the obligations, prohibitions or restrictions should
not be imposed, and any information known about the person's age.
The first note to new subsection 104.23(2) indicates that the requirement
to include information about the person's age is necessary as new section
104.28 prohibits the making of a control order in relation to a person who
is under 16 years of age.
The second note to new subsection 104.23(2) indicates that it is an offence
to include information in the variation application that is false or
misleading (see sections 137.1 and 137.2 of the Criminal Code, which
provide for the offences of false or misleading information (section 137.1)
and documents (section 137.2)).
New subsection 104.23(3) requires the Commissioner to give written notice
to the person subject to the order of the application and the grounds on
which the variation is sought, and if applicable, the Queensland public
interest monitor.
New subsection 104.23(4) provides that the Commissioner, one or more other
AFP members, the person and one or more of the person's representatives,
and if applicable, the Queensland public interest monitor, may adduce
additional evidence to the court in relation to the application to vary the
order.
New subsection 104.23(5) provides that subsection 104.23(4) does not
otherwise limit the power of the court to control proceedings in relation
to an application to vary a confirmed control order.
New section 104.24 - Varying a control order
New subsection 104.24(1) provides that an issuing court may vary a control
order by adding additional obligations, prohibitions or restrictions only
if an application has been made in accordance with the requirements set out
in section 104.23, and the court is satisfied on the balance of
probabilities that each of the additional obligations, prohibitions or
restrictions to be imposed on the person is reasonably necessary and
reasonably appropriate and adapted for the purpose of protecting the public
from a terrorist act.
New subsection 104.24(2) provides that in making a decision under new
subsection 104.24(1), the court must take into account the impact of each
of the obligations, prohibitions or restrictions on the person's
circumstances (including the person's financial and personal
circumstances). This is designed to ensure an obligation that would, for
example, have an adverse impact on the ability of person to earn a living
and support his or her family must be taken into account before the
obligation, prohibition or restriction is imposed.
New section 104.25 - Terms of a varied control order
New section 104.25 sets out the information that must be included in a
control order that is varied by a court under section 104.24.
The varied control order must include a statement that the court is
satisfied of the matter referred to in new paragraph 104.24(1)(b), which is
that the court is satisfied on the balance of probabilities that each of
the additional obligations, prohibitions or restrictions to be imposed on
the person is reasonably necessary and reasonably appropriate and adapted
for the purpose of protecting the public from a terrorist, a statement of
the additional obligations, prohibitions or restrictions that are imposed
on the person by the varied order, a statement that the variation of the
order does not begin to be in force until the varied order is served
personally on the person, and a statement that the person's lawyer may
attend a specified place in order to obtain a copy of the varied order.
New section 104.26 - Service and explanation of a varied control order
Similar to new sections 104.12 and 104.17 in relation to service of control
orders, new section 104.26 requires an AFP member to serve the varied order
on the person to whom the order relates, and inform the person of the
variation of the order, inform the person of the effect of the additional
obligations, prohibitions and restrictions and the effect of new sections
104.18, 104.21 and 104.27 (and new section 104.22 if appropriate), and
ensure that the person understands this information taking into account the
person's age, language skills, mental capacity and any other relevant
factor.
The AFP member is required to serve the varied order and inform the person
as soon as practicable after the variation is made. The varied order must
be served personally.
New subsection 104.26(2) provides that, to avoid any doubt,
subparagraph 104.26(1)(a)(ii) does not require information to be included
in the summary if the disclosure of the information is likely to prejudice
national security (within the meaning of the National Security Information
(Criminal and Civil Proceedings) Act 2004).
New subsection 104.26(3) provides that the requirements under new
paragraphs 104.26(1)(c) and (d) to inform the person of certain matters and
ensure the person understands do not apply if the actions of the person to
whom the control order applies has made it impracticable for the AFP member
to comply with those requirements.
New subsection 104.26(4) provides that a failure to ensure that the person
understands the information, as required under new paragraph (1)(d), does
not make the control order ineffective to any extent.
New Subdivision G - Contravening a control order
New section 104.27 - Offence of contravening a control order
New section 104.27 creates an offence for a person to contravene a term of
a control order that is in force in relation to the person. Section 5.6 of
the Criminal Code operates to require proof that the accused was at least
reckless as to the contravention. 'Recklessness' is defined in section 5.4
with respect to a circumstances if he or she is aware of a substantial risk
that the circumstance exists or will exist, and having regard to the
circumstances known to the person it is unjustifiable to take the risk.
The offence carries a maximum penalty of 5 years imprisonment.
New Subdivision H - Miscellaneous
New section 104.28 - Special rules for young people
New section 104.28 provides for the special rules relating to control
orders for young people aged under 16 years and aged between 16 and 18
years.
New subsection 104.28(1) provides that a control order cannot be requested,
made or confirmed in relation to a person who is under 16 years of age.
New subsection 104.28(2) provides that if the court is satisfied that a
person in relation to whom an interim control order is being made or
confirmed is at least 16 but under 18, the control order can only be in
force for 3 months from the day the order is made by the court. This is
designed to recognise the special needs of young people and the additional
care that needs to be exercised when dealing with young people in the
criminal and security environments.
New subsection 104.28(3) makes it clear that new subsection 104.28(2) does
not prevent the making of successive control orders in relation to the same
person.
New section 104.29 - Reporting requirements
New section 104.29 requires the Attorney-General to cause a report on the
operation of the Division to be prepared and tabled annually.
New subsection 104.29(2) provides that the report relating to a year must
include the number of interim control orders made, specifically identifying
the number of urgent control orders made electronically and in person, the
number of control orders confirmed, the number of control orders declared
to be void, the number of control orders revoked, the number of control
orders varied and particulars of any complaints relating to control orders
made or referred to the Commonwealth Ombudsman or the Internal
Investigation Division of the Australian Federal Police.
New subsection 104.29(3) provides that the Attorney-General must cause
copies of the report to be laid before each House of Parliament within 15
sitting days of that House after the report is completed.
New section 104.30 - Requirements to notify Attorney-General of
declarations, revocations or variations
New section 104.30 requires the Commissioner of the AFP to cause the
Attorney-General to be notified in writing if a control order is declared
to be void under section 104.14, revoked under section 104.14 or 104.20 or
varied under section 104.14, 104.20 or 104.24. If a control order is
varied, the Commissioner must cause a copy of the varied control order to
be given to the Attorney-General.
New section 104.31 - Queensland public interest monitor functions and
powers not affected
New section 104.31 provides that this new Division does not affect any
functions or powers that Queensland public interest monitor or deputy
public interest monitor has under a law of Queensland. In Queensland, all
applications for warrants and related judicial authorisations are attended
by the public interest monitor who provides the case for the person who
would be the subject of the warrant. This new Division is not intended to
affect any powers of that office. It is intended to ensure that the role
of the Queensland public interest monitor in overseeing Queensland law
enforcement officers operating under Queensland legislation in relation to
control orders is preserved. The provision is not intended to authorise
the Queensland Parliament to legislate to control how powers are to be
exercised under the Bill by Commonwealth officers.
New section 104.32 - Sunset provision
New subsection 104.32(1) provides that a control order that is in force at
the end of 10 years after the day on which this Division commences ceases
to be in force at that time. In addition, proposed subsection 104.32(2)
provides that a control order can not be requested, made or confirmed after
the end of 10 years after the day on which this Division commences.
The sunset provision acknowledges that there are a number of machinery type
provisions that must continue in operation despite the intention that the
Division providing for control orders should cease to have effect at the
end of 10 years. These provisions include, for example, the requirement to
destroy identification material.
Division 105 - Preventative Detention Orders
New Division 105 of the Criminal Code provides a regime for detaining
persons for up to 48 hours for the purposes of preventing a terrorist act
or preventing the destruction of evidence relating to a terrorist act.
Applications for initial preventative detention orders are made by an AFP
member to a senior AFP officer. Initial preventative detention orders can
have force for up to 24 hours from the time the person was first taken into
custody. Applications for continued preventative detention orders are made
by AFP members to a judge of a State or Territory Supreme Court, Federal
Magistrate, Judge, retired judge or President or Deputy President of the
Administrative Appeals Tribunal. Continued preventative detention orders
can have force for up to 48 hours from the time the person was first taken
into custody.
Although only AFP members can request the issue of preventative detention
orders, any police officer, whether an AFP member or a member of the police
force of a State or Territory, may detain a person under such an order.
This is to ensure that if a State or Territory police officer is aware that
a preventative detention order is in force in relation to a person and
locates that person, the person may be immediately detained without the
need for an AFP member to attend and personally detain the person.
While in preventative detention, the person has an entitlement to contact
those who are close to them to let them know that he or she is safe, and to
contact a lawyer. These contact rights can be restricted by obtaining a
prohibited contact order, which prohibits the person from contacting
specified persons where the prohibition of such contact will assist in
achieving the objectives of the preventative detention order.
Subdivision A-Preliminary
New section 105.1 - Object
New section 105.1 sets out the objects of new Division 105. The objects
are to enable the police to take a person into custody and detain that
person for a short period of time, being no longer than 48 hours, in order
to prevent an imminent terrorist act occurring, or to preserve evidence of,
or relating to, a recent terrorist act.
The note to new section 105.1 indicates that a person detained under a
preventative detention order may only be questioned for very limited
purposes, in accordance with new section 105.42. This note clarifies that
extended questioning is not an object of preventative detention orders.
New section 105.2 - Issuing authorities for continued preventative
detention orders
New section 105.2 sets out the persons who can be 'issuing authorities' for
the purposes of continued preventative detention orders.
New subsection 105.2(1) provides that the Minister may appoint, in writing,
a judge of a State or Territory Supreme Court, a Federal Magistrate, a
Judge (Federal or Family Court), a former judge who has served at least
five years as a judge of one or more superior courts, or a President or
Deputy President of the Administrative Appeals Tribunal who is enrolled as
a legal practitioner of a federal court or the Supreme Court of a State or
Territory and has been so enrolled for at least five years, to be an
issuing authority for continued preventative detention orders.
New subsection 105.2(2) provides that the Minister may not appoint a person
unless the person has, in writing, consented to being appointed, and the
person has not revoked that consent.
This is to ensure that those who are undertaking the role of issuing
authorities have been given appropriate opportunity to consider the
operation of the preventative detention regime in advance of being
requested to consent to a particular request.
It should be noted that these issuing authorities relate to continued
preventative detention orders. Initial preventative detention orders can
be issued by the Commissioner or Deputy Commissioner of the AFP, or an AFP
member of, or above, the rank of Superintendent.
New section 105.3 - Police officer detaining person under a preventative
detention order
New section 105.3 provides that where more than one police officer is
involved in the detention of a person under a preventative detention order,
it is either the most senior of those officers who are AFP members, or if
none of the officers are AFP members, the most senior of those officers,
who is required to ensure compliance with any obligations imposed on the
police officer with respect to that detention.
For example, if a person is taken into custody under a preventative
detention order by an AFP sergeant and a State inspector, the AFP sergeant
is responsible for ensuring that the requirements about explaining the
preventative detention order to the person are met. In the case of a State
constable and a sergeant, it is the sergeant who is responsible.
Where the person is subsequently held in a cell in a watch house under the
preventative detention order, the most senior police officer on duty is
responsible for ensuring compliance with the obligations imposed by this
Division, including that the person is treated humanely and not questioned
about an offence.
This is designed to facilitate the compliance with obligations created by
this Division by making it clear who bears responsibility for them at any
given time.
Subdivision B-Preventative detention orders
New section 105.4 - Basis for applying for, and making, preventative
detention orders
New subsection 105.4(1) provides that a preventative detention order may
only be applied for by an AFP member who satisfies new subsection (4) or
(6). Similarly, new subsection 105.4(2) provides that a preventative
detention order may only be made by an issuing authority who satisfies new
subsection (4) or (6).
New subsection 105.4(3) is a definitional provision which provides that,
for the purposes of this section, the person in relation to whom the
preventative detention order is applied for, or made, is referred to as the
subject.
A person meets the criteria in new subsection 105.4(4) if the person is
satisfied that there are reasonable grounds to suspect that the subject
will engage in a terrorist act, possesses a thing that is connected with
the preparation for, or the engagement of a person in, a terrorist act, or
has done, or will do, an act in preparation for, or planning, a terrorist
act, making the order would substantially assist in preventing a terrorist
act occurring and detaining the person for the period for which detention
is to occur is reasonably necessary for preventing this act. This ensures
the AFP member who applies for an order, and the issuing authority who
makes an order, must specifically consider the duration for which the
person should be detained.
New subsection 105.4(5) qualifies the operation of new subsection 105.4(4)
by providing that the terrorist act must be imminent and must be expected
to occur in the next 14 days.
The combined operation of these subsections creates a high threshold for
applying for and issuing a preventative detention order because it is
necessary to show not only that the subject had, for example, done
something in preparation for a terrorist act, but also that the terrorist
act is imminent, and that making the order would assist in preventing a
terrorist act.
A person does not satisfy new subsection 105.4(4) where even one of these
criteria are not established. For example, if the terrorist act was not
imminent, but was expected to occur in three weeks time, the criteria would
not be met and it would not be possible to obtain a preventative detention
order. However, in such cases, it might be possible to use other
investigatory tools, such as surveillance or listening devices.
In circumstances where one or more terrorist acts have already occurred and
intelligence indicates that further terrorist acts are imminent, it is
possible for a preventative detention order to be made provided the other
criteria in subsection 105.4(4) are met.
New subsection 105.4(6) provides an alternative basis for requesting, or
making, a preventative detention order. A person satisfies this new
subsection if the person is satisfied that a terrorist act has occurred
within the last 28 days, it is necessary to detain the subject to preserve
evidence of, or relating to, the terrorist act and that detaining the
subject for the period for which detention is to occur is reasonably
necessary for preserving this evidence.
Unlike new subsection 105.4(4), a preventative detention order under new
subsection 105.4(6) can only be made where a terrorist act has already
occurred.
New subsection 105.4(7) provides that an issuing authority may require the
AFP member applying for the order to provide further information before
making a preventative detention order. This provides flexibility in cases
where the information provided during the application process is not
sufficient for the making of an order, but the AFP member is able to
provide such additional information as will enable the issuing authority to
make such an order.
New section 105.5 - No preventative detention order in relation to persons
under 16 years of age
New subsection 105.5(1) prohibits an AFP member from applying for, and an
issuing authority making, a preventative detention order in relation to a
person who is under 16 years of age.
The note to new subsection 105.5(1) indicates that new section 105.39 and
new subsections 105.43(4) to (9) and (11) provide special rules for the
making of preventative special orders in relation to people who are under
18 years of age.
It is possible that an AFP member could apply for, and an issuing authority
could make, a preventative detention order in relation to a person without
knowing that the person is under 16 years of age. Therefore, as an
additional safeguard, new subsection 105.5(2) provides that if a police
officer detaining a person under a preventative detention order is
satisfied on reasonable grounds that the person is under 16 years of age,
the police officer must, if themselves an AFP member, release the person
from detention as soon as practicable, or if not themselves an AFP member,
must inform a senior AFP member as soon as practicable of his or her
suspicions.
New subsection 105.5(3) provides that if a senior AFP member is informed of
a police officer's suspicions under new subsection 105.5(2), and the senior
AFP member is satisfied that the person being detained is under 16 years of
age, the senior AFP member must arrange to have the person released from
detention as soon as practicable.
New section 105.6 - Restrictions on multiple preventative detention orders
The time limits on preventative detention are an extremely important
safeguard in the regime and protect individuals from lengthy periods of
detention when there is insufficient evidence available to arrest and
charge a person. It is therefore vital that there be restrictions on
obtaining multiple preventative detention orders in relation to the same
person.
New subsection 105.6(1) prevents the AFP from obtaining multiple initial
preventative detention orders in relation to the same person on the basis
of assisting in preventing a particular terrorist act occurring within a
particular period. Without this safeguard, it would be possible to obtain
multiple initial preventative detention orders, each for the maximum period
permitted under the legislation, without judicial consideration (under the
regime, only a Federal Magistrate or a Judge can extend a preventative
detention order beyond 24 hours and up to 48 hours).
The note to new subsection 105.6(1) indicates that this provision does not
prevent the making of a preventative detention order to preserve evidence
in relation to the terrorist act, if it occurs. For example, a person
could be taken into preventative detention under an order made under new
subsection 105.4(2) or under a corresponding state law to prevent the
person committing a terrorist act in the next 14 days. Following release
from detention, a terrorist act could occur. In those circumstances,
provided the criteria for making an initial preventative detention order in
relation to the person under subsection 105.4(4) were satisfied, it would
be possible to apply for and make an initial preventative detention order
in relation to the person and take the person into preventative detention
for the purposes of preserving evidence of a terrorist act. In those
circumstances, it would be possible for the person to be subject to
preventative detention for a period exceeding 48 hours within the same 14-
day period.
New subsection 105.6(2) prevents the AFP from obtaining multiple initial
preventative detention orders in relation to the same person on the basis
of assisting in preventing different terrorist acts occurring within a
particular period, unless the order is based on information that became
available only after the initial preventative detention order was made.
New subsection 105.6(3) prevents the AFP from obtaining multiple initial
preventative detention orders in relation to the same person on the basis
of preserving evidence of, or relating to, a terrorist act. Consistent
with subsection 105.6(1), this limitation only applies where the person is
detained under the order.
New subsection 105.6(4) is the equivalent of subsection 105.6(1) where the
person is detained under a corresponding State preventative detention law.
A corresponding State preventative detention law is defined in
subsection 100.1(1) as a law or particular provisions of a law of a State
or Territory declared by the regulations to correspond to Division 105 of
this Act. This provision prevents the AFP from obtaining an initial
preventative detention order in relation to a person already detained under
a corresponding State preventative detention law without judicial
consideration.
New subsection 105.6(5) is the equivalent of subsection 105.6(2) where the
person is detained under a corresponding State preventative detention law.
New subsection 105.6(6) is the equivalent of subsection 105.6(3) where the
person is detained under a corresponding State preventative detention law.
The limitations in section 105.6 only apply where the person is detained
under the order. If, for example, a preventative detention order is made
and the police are unable to locate and take the person into preventative
detention before the order expires (see subsection 105.9(2)), the provision
does not prevent the AFP from obtaining a further initial preventative
detention order provided the criteria for making an order are satisfied.
New section 105.7 - Applying for an initial preventative detention order
New section 105.7 outlines the steps required for applying for an initial
preventative detention order.
New subsection 105.7(1) provides that an application can be made by an AFP
member to an issuing authority. The notes to new subsection (1) indicate
that an issuing authority for the purposes of an initial preventative
detention order is a senior AFP member, with both terms defined in
subsection 100.1(1). The persons who can be issuing authorities for the
purposes of initial preventative detention orders are limited to the
Commissioner or Deputy Commissioner of the AFP, or an AFP member of, or
above, the rank of Superintendent.
New subsection 105.7(2) provides that an application must be made in
writing and must set out the facts and other grounds on which the AFP
member considers that the order should be made. The application must also
specify the period for which the person is to be detained under the order,
the facts and other grounds on which the AFP member considers that the
person should be detained for that period, the person's age (if known), the
particulars and outcomes of all previous applications for preventative
detention orders and requests for control orders and information about any
periods for which the person has been detained under a corresponding State
preventative detention law (if known). There is no requirement that the
facts and other grounds be sworn or affirmed by the AFP member.
New subsection 105.7(3) provides that, if an AFP member applies for a
further initial preventative detention order in relation to a person, the
application must identify the information on which the application is made
that became available only after the initial preventative detention order
was made. As with section 105.6, this applies only where the person is
detained under the order.
New subsection 105.7(4) is the equivalent of subsection 105.7(3) where the
person is detained under a corresponding State preventative detention law.
There is no requirement to include information about any unsuccessful
applications for orders. Such processes will not have had any adverse
impact on the person as a person can not be taken into custody under such
circumstances, and in fact would be unlikely to be aware that a previous
application was unsuccessful.
New section 105.8 - Senior AFP member may make an initial preventative
detention order
New section 105.8 outlines the procedure for making an initial preventative
detention order.
New subsection 105.8(1) provides that an issuing authority may make an
initial preventative detention order. As noted above, an issuing authority
for the purposes of an initial preventative detention order is the
Commissioner or Deputy Commissioner of the AFP or an AFP member at, or
above, the rank of Superintendent.
New subsection 105.8(2) notes that new section 105.8 operates subject to
the matters contained in new sections 105.4, 105.5 and 105.6. Those new
sections deal with the criteria for applying for and making a preventative
detention order, the prohibition on obtaining a preventative detention
order for a person under 16 years of age, and the limits on multiple
initial preventative detention orders in relation to the same terrorist
act, respectively.
New subsection 105.8(3) outlines the actions that an initial preventative
detention order authorises, which includes that the person specified in the
order may be taken into custody and detained. The period during which
the person can be detained under the order starts when the person is first
taken into custody under the order and ends at the time specified in the
order.
New subsection 105.8(4) provides that the order must be in writing.
New subsection 105.8(5) provides that the period of detention authorised by
the order under new subsection 105.8(3) must not exceed 24 hours.
New subsection 105.8(6) requires an initial preventative detention order to
set out the name of the person in relation to whom it is made, the period
(not exceeding 24 hours) during which the person may be detained under the
order, the date on which, and the time at which, the order is made, and the
date and time after which the person may not be taken into custody under
the order (see subsection 105.9(2)).
New subsection 105.8(7) provides that if the order is made in relation to a
person who is under the age of 18 years (but note section 105.5, which
prevents an order being made in relation to a person under the age of 16
years) or who is incapable of managing his or her affairs, the order may
specify any period of time during which the person may have contact with
another person. In the absence of this provision, or the specification of
any period in the order, the person may not have contact with another
person for more than two hours per day (see subsection 105.39(4)).
New section 105.9 - Duration of initial preventative detention order
New subsection 105.9(1) provides that an initial preventative detention
order has effect from the time when it is made.
The note to new subsection (1) indicates that the order comes into force
when it is made and authorises the AFP to take the person into custody
under new paragraph 105.8(3)(a). This is to be distinguished from the
period for which the person may then be detained under the order, which
only commences when the person is first taken into custody under the order.
New subsection 105.9(2) provides for the expiry of the initial preventative
detention order if it is not executed within a specified time.
Specifically, if the person is not taken into custody under the order
within 48 hours of it being made, the order ceases to have effect. Where
the police do not take the person into custody during the period permitted,
the AFP can apply for a fresh initial preventative detention order under
new section 105.6.
New subsection 105.9(3) provides for the expiry of the initial preventative
detention order if it is executed within a specified time. An initial
preventative detention order under which the person is taken into
preventative detention ceases to have effect when either the period
specified in the order or in an extended order under new section 105.10,
expires, or when the order is revoked under new section 105.17, whichever
occurs first.
The first note to new subsection 105.9(3) indicates that where a person is
released from detention under an order (eg, for the purposes of a warrant
under section 34D of the Australian Security Intelligence Organisation Act
1979 (ASIO Act)), the order does not cease to have effect (see new
sections 105.25 and 105.26).
The second note to new subsection 105.9(3) indicates that the subsection
should be read in conjunction with new section 105.11, which provides for a
continued preventative detention order, and allows the person to continue
to be detained for up to 48 hours after the person is first taken into
custody under the initial preventative detention order.
New section 105.10 - Extension of initial preventative detention order
New subsection 105.10(1) authorises an AFP member to apply to an issuing
authority for the extension of an initial preventative detention order.
Consistent with the process for applying for an initial preventative
detention order, new subsection 105.10(2) provides that an application for
extension must be in writing and must set out the facts and other grounds
on which the AFP member considers that the extension or further extension
should be made. The application must also set out the particulars and
outcomes of all previous applications for extensions of the order. The
note to new subsection (2) indicates that new subsections 105.4(4) and (6)
set out the grounds on which a preventative detention order may be made.
New subsection 105.10(3) authorises the issuing authority to extend or
further extend the period for which the order is to be in force in relation
to the person. New subsection 105.10(4) provides that the extension or
further extension must be made in writing.
New subsection 105.10(5) provides that the total period of detention
allowed under an initial preventative detention order, including
extensions, must end no later than 24 hours after the person is first taken
into custody under the order.
New section 105.11 - Application for continued preventative detention order
A person can not be detained under an initial preventative detention order,
including an extended initial preventative detention order, for a period
exceeding 24 hours. However, new section 105.11 provides for that
detention to be continued for a period not exceeding 48 hours where a
judicial issuing authority authorises such detention.
Where an initial preventative detention order is in force in relation to a
person, new subsection 105.11(1) authorises an AFP member to apply to an
issuing authority for a continued preventative detention order in relation
to that person. For the purposes of a continued preventative detention
order, an issuing authority is limited to certain judges, Federal
Magistrates, AAT members and retired judges who have consented to that
appointment in writing (see new section 105.2).
Consistent with new subsection 105.7(2), new subsection 105.11(2) requires
the application to be made in writing and to set out the facts and other
grounds on which the AFP member considers that the order should be made.
The application must also specify the period for which the person is to
continue to be detained under the order and set out the facts and other
grounds on which the AFP member considers that the person should continue
to be detained for that period, the person's age (if known), information
about any periods for which the person has been detained under a
corresponding State preventative detention law (if known) and the
particulars and outcomes of all previous applications for preventative
detention orders, and requests for control orders, in relation to the
person.
The note to new subsection 105.11(2) indicates that it is an offence to
include information in the variation application that is false or
misleading (see sections 137.1 and 137.2 of the Criminal Code, which
provide for the offences of false or misleading information (section 137.1)
and documents (section 137.2)).
New subsection 105.11(3) notes that the requirement to include information
about previous preventative detention orders in relation to the person does
not include information about the initial preventative detention order in
relation to which the continued preventative detention order is sought.
New subsection 105.11(4) requires the information in the application to be
sworn or affirmed by the AFP member.
New section 105.12 - Judge or Federal magistrate, AAT member or retired
judge may make continued preventative detention order
New subsection 105.12(1) authorises an issuing authority to make a
continued preventative detention order if a person has been taken into
custody under an initial preventative detention order, and that order is
still in force. It does not matter if the person is being detained under
the order at the time (for example, the person may be, for the time being,
in the custody of ASIO under a warrant issued under section 34D of the ASIO
Act).
Consistent with new subsection 105.8(2), new subsection 105.12(2) notes
that new subsection 105.12(1) operates subject to the matters contained in
new sections 105.4, 105.5 and 105.6. Those sections deal with the criteria
for applying for and making a preventative detention order, the prohibition
on obtaining a preventative detention order for a person under 16 years of
age, and the limits on multiple initial preventative detention orders in
relation to the same terrorist act, respectively. New subsection 105.12(2)
means that, whether a preventative detention order will be made is to be
decided on its merits, effectively as a stand alone application, and is to
be determined in accordance with the criteria in new sections 105.4, 105.5
and 105.6.
New subsection 105.12(3) outlines the things that a continued preventative
detention order authorises, which includes that the person specified in the
order may be detained. The period during which the person can be detained
under the order starts when the person is first taken into custody under
the order and ends at the time specified in the order.
New subsection 105.12(4) provides that the order must be in writing.
New subsection 105.12(5) provides that the period of detention authorised
by the order under subsection 105.12(3) must not exceed 48 hours.
New subsection 105.12(6) requires a continued preventative detention order
to set out the name of the person in relation to whom it is made, the
further period during which the person may be detained under the order, and
the date on which, and the time at which, the order is made.
New subsection 105.12(7) provides that if the order is made in relation to
a person who is under the age of 18 years or who is incapable of managing
his or her affairs, the order may specify any period of time during which
the person may have contact with another person. In the absence of this
provision, or the specification of any period in the order, the person may
not have contact with another person for more than two hours per day (see
subsection 105.39(4)).
New section 105.13 - Duration of continued preventative detention order
New subsection 105.13(1) provides that a continued preventative detention
order has effect from the time when it is made.
The note to subsection 105.13(1) indicates that as with initial orders, the
continued order comes into force when it is made and the period for which
the person may be detained under the order starts to run when the period
during which the person may be detained under the initial preventative
detention order ends.
New subsection 105.13(2) provides that the continued preventative detention
order expires when either the period specified in the order or in an
extended order under new section 105.14 expires, or when the order is
revoked under new section 105.17, whichever occurs first.
New subsection 105.13(2) should be read in conjunction with new
section 105.14, which provides for the extension of a continued
preventative detention order.
The note to subsection 105.13(2) indicates that as with initial
preventative detention orders, where a person is released from detention
under an order (eg, for the purposes of a warrant under section 34D of the
Australian Security Intelligence Organisation Act 1979), the order does not
cease to have effect (see new section 105.25 below).
New section 105.14 - Extension of continued preventative detention order
Where a continued preventative detention order is in force in relation to a
person, new subsection 105.14(1) authorises an AFP member to apply to an
issuing authority for the extension of that continued preventative
detention order (see new section 105.2).
Consistent with the process for applying for the extension of an initial
preventative detention order, new subsection 105.14(2) provides that an
application for extension must be in writing and must set out the facts and
other grounds on which the AFP member considers that the extension or
further extension should be made. The application must also set out the
particulars and outcomes of all previous applications for extensions of the
order. The note to new subsection (2) indicates that new subsections
105.4(4) and (6) set out the grounds on which a preventative detention
order may be made.
As with applications for continued preventative detention orders, new
subsection 105.14(3) provides that the information in the application must
be sworn or affirmed by the AFP member.
New subsection 105.14(4) authorises the issuing authority to extend or
further extend the period for which the order is to be in force in relation
to the person. New subsection 105.10(5) provides that the extension or
further extension must be made in writing.
New subsection 105.14(6) provides that the total period of detention
allowed, as extended or further extended, must end no later than 48 hours
after the person is first taken into custody under the initial preventative
detention order.
New section 105.15 - Prohibited contact order (person in relation to whom
preventative detention order is being sought)
New section 105.15 provides for orders that prohibit a person who is in
custody under a preventative detention order from contacting specified
persons. This is designed to ensure that the 'preventative' purpose of the
order is not defeated by the person in detention being able to contact
other persons, including co-conspirators or those who might be in custody
of evidence relating to a terrorist act, and, for example, instructing such
a person to further the terrorist act in the person's absence, or destroy
evidence of a terrorist act.
New subsection 105.15(1) authorises an AFP member who applies for a
preventative detention order to also apply for a prohibited contact order.
The application must be made to an issuing authority. Accordingly, if an
application is made at the time of applying for an initial preventative
detention order, the application must be made to the Commissioner or a
Deputy Commissioner of the AFP, or an AFP member of, or above, the rank of
Superintendent. If an application is made at the time of applying for a
continued preventative detention order, the application must be made to an
issuing authority (see new section 105.2).
New subsection 105.15(2) requires an application to set out the terms of
the order sought and the facts and other grounds on which the AFP member
considers that the order should be made.
In the case of an application for a prohibited contact order that is made
at the time of applying for an initial preventative detention order, there
is no requirement for the information in the application for the prohibited
contact order to be sworn or affirmed by the AFP member. However, in the
case of an application for a prohibited contact order that is made at the
time of applying for a continued preventative detention order, new
subsection 105.15(3) requires the information in the application for the
prohibited contact order must be sworn or affirmed by the AFP member.
New subsection 105.15(4) authorises the relevant issuing authority to make
the prohibited contact order if the preventative detention order is to be
made and the issuing authority is satisfied that making the prohibited
contact order will assist in achieving the objectives of the preventative
detention order. The prohibited contact order prohibits the subject, while
being detained under the preventative detention order, from contacting a
person specified in the prohibited contact order. The note to new
subsection (2) indicates that new subsections 105.4(4) and (6) set out the
objectives of preventative detention orders.
New subsection 105.15(5) provides that the prohibited contact order must be
in writing.
New section 105.16 - Prohibited contact order (person in relation to whom
preventative detention order is already in force)
It is possible that, as a result on ongoing enquiries, the AFP obtains
information that indicates that obtaining a prohibited contact order in
relation to a person in relation to whom a preventative detention order is
already in force would assist in achieving the objectives of the
preventative detention order. In those cases, it will be necessary for the
AFP member to apply for a prohibited contact order while the person is in
detention.
New subsection 105.16(1) provides that an AFP member can apply to the
relevant issuing authority for a prohibited contact order while the
preventative detention order is in force. As with prohibited contact
orders under new section 105.15, the relevant issuing authority will be the
Commissioner or a Deputy Commissioner of the AFP, or an AFP member of, or
above, the rank of Superintendent in relation to an initial preventative
detention order, and a judge of a State or Territory Supreme Court, a
Federal Magistrate, a Judge (Federal or Family Court), a former judge, or a
President or Deputy President of the Administrative Appeals Tribunal in
relation to a continued preventative detention order.
Consistent with prohibited contact orders sought under new
subsection 105.15, new subsection 105.16(2) provides that an application
under this section must set out the terms of the order sought and the facts
and other grounds on which the AFP member considers that the order should
be made.
In the case of an application for a prohibited contact order that is made
in connection with an initial preventative detention order, there is no
requirement for the information in the application for the prohibited
contact order to be sworn or affirmed by the AFP member. However, in the
case of an application for a prohibited contact order that is made in
connection with a continued preventative detention order new
subsection 105.16(3) requires the information in the application for the
prohibited contact order must be sworn or affirmed by the AFP member.
New subsection 105.16(4) authorises the relevant issuing authority to make
the prohibited contact order where it is satisfied that making the
prohibited contact order will assist in achieving the objectives of the
preventative detention order. The prohibited contact order prohibits the
subject, while being detained under the preventative detention order, from
contacting a person specified in the prohibited contact order. The note to
new subsection (2) indicates that new subsections 105.4(4) and (6) set out
the objectives of preventative detention orders.
New subsection 105.16(5) provides that the prohibited contact order must be
in writing.
It should be noted that new subsection 105.16 does not authorise the AFP to
prohibit a person from contacting a person while the AFP member or another
AFP member applies to an issuing authority for a prohibited contact order
in relation to that person. Therefore, if a person is in detention under a
preventative detention order, and the person requests to contact a specific
person under new section 105.35, 105.36, 105.37 or 105.39, who is not the
subject of an existing prohibited contact order, the AFP member detaining
the person must not refuse that contact (subject to new section 105.38).
New section 105.17 - Revocation of preventative detention order or
prohibited contact order
New subsection 105.17(1) requires a police officer who is detaining a
person under a preventative detention order and who is satisfied that the
grounds on which the preventative detention order was made have ceased to
exist to either apply to a relevant issuing authority for the revocation of
the preventative detention order, if the police officer is an AFP member,
or inform a senior AFP member of the police officer's reasons for being
satisfied that the grounds no longer exist.
New subsection 105.17(2) provides that if a senior AFP member is informed
by a police officer under new subsection (1) and the senior AFP member is
also satisfied that the grounds on which the order was made have ceased to
exist, the AFP member must apply to a relevant issuing authority for the
revocation of the order.
New subsection 105.17(3) requires an issuing authority who is satisfied, on
application by an AFP member, that the grounds on which the preventative
detention order was made have ceased to exist, to revoke the preventative
detention order.
New subsections 105.17(4) to (6) are the equivalent of new subsections (1)
to (3) in relation to the situation where a police officer detaining a
person under a preventative detention order, in relation to whom a
prohibited contact order is also in place, and the police officer is
satisfied the grounds on which the prohibited contact order was made have
ceased. In these circumstances, an application must be made to revoke this
order and the relevant issuing authority, if in agreement, must revoke the
order.
New section 105.18 - Status of person making continued preventative
detention order
New subsection 105.18(1) provides that an issuing authority who makes a
continued preventative detention order or a prohibited contact order has
the same protection and immunity as a Justice of the High Court.
New subsection 105.18(2) provides that making, revoking, extending or
further extending a continued preventative detention order, or making or
revoking a prohibited contact order, are powers conferred in a personal
capacity and not as a court or a member of a court. This new subsection
has been included to ensure that it is clear that the function of issuing
authority is conferred on judge, a Federal Magistrate or a member of the
Administrative Appeals Tribunal in their personal capacity. It is clear
that a former judge who is an issuing authority is exercising powers
conferred by the Division in a personal capacity and not as a court or a
member of a court, and it is therefore unnecessary to specifically refer to
former judges in subsection 105.18(2).
The provision is in similar terms to section 4AAA of the Crimes Act which
regulates the conferral of functions on judicial officers under
Commonwealth law in relation to 'criminal matters'.
Subdivision C-Carrying out preventative detention orders
New section 105.19 - Power to detain person under preventative detention
order
New subsection 105.19(1) provides that, once the preventative detention
order has come into force by being made by an issuing authority, the person
the subject of the order can be taken into custody and detained by any
police officer. Consistent with arrest warrants and similar documents, it
is not necessary for the AFP member who applied for the order to take the
person into custody and to detain the person.
This ensures the person does not avoid being taken into custody and
detained because they have been located by a police officer of a State or
Territory or another AFP member.
New subsection 105.19(2) provides that a police officer, in effecting the
taking of a person into custody and ensuring that the person remains in
custody, has the same powers and obligations as the police officer would
have in the situation of arresting the person for an offence or ensuring
that the person remained in custody after being arrested for an offence.
However, new subsection 105.19(4) ensures that this does not apply to the
extent that powers and obligations are provided for in this new
Subdivision, or new Subdivisions D or E.
The effect of these provisions is to ensure that a police officer may take
the same action to ensure that the person is taken into custody and does
not escape that custody that he or she is permitted to take to ensure the
same result in relation to an arrest warrant. These provisions are
intended to relate to the actual moment of taking the person into custody.
It is not intended that these provisions require a person to be brought
before a judge or magistrate as soon as possible for the purposes of either
charging or releasing the person.
New subsection 105.19(3) defines offence for the purposes of new
subsection 105.19(2) to mean an offence against the Commonwealth for AFP
members and an offence against a law of the particular State or Territory
for members of a State or Territory police force. This is to ensure that
each individual police officer is subject to his or her usual rules and
procedures in relation to arrests. In the case of the AFP, the relevant
powers are conferred by section 3ZC of the Crimes Act. State and Territory
powers vary. This provision is designed to ensure police are able to use
those powers in relation to which they have received training and are
experienced and familiar.
In addition, new subsection 105.19(4) ensures that where specific powers
and obligations are expressed in this new Division, they override other
usual powers that may apply to police officers in relation to arrests. For
example, new section 105.22 provides a power to enter premises, and new
sections 105.23 and 105.24 provide powers to conduct frisk and ordinary
searches. These new provisions apply to the exclusion of any powers and
obligations that may exist under general police procedures in relation to
these actions.
New subsections 105.19(5) through (9) place obligations on the Commissioner
of the AFP to ensure obligations in relation to the preventative detention
order are exercised properly.
New subsection 105.19(5) requires the Commissioner of the Australian
Federal Police must nominate a senior AFP member (the nominated senior AFP
member) to oversee the exercise of powers under, and the performance of
obligations in relation to, the preventative detention order. That
nominated senior AFP member must be someone who was not involved in the
making of the application for the preventative detention order (see new
subsection 105.19(6).
New subsection 105.19(7) provides that the nominated senior AFP member must
oversee the exercise of powers under, and the performance of obligations in
relation to, the preventative detention order, ensure compliance with the
provisions of section 105.17 (which deals with revocation of preventative
detention orders and prohibited contact orders), and receive and consider
any representations that are made under subsection 105.19(8). This
provision ensures that the detainee, the detainee's lawyer, or a person
with whom that person has contact under subsection 105.39(2) can make
representations to a particular senior AFP member about the order and the
treatment of the detainee under the order, including compliance with the
provisions of section 105.17 (which deals with revocation of preventative
detention orders and prohibited contact orders) (see new
subsection 105.19(8)).
New subsection 105.19(9) provides that the Commissioner of the AFP may
delegate his or her powers to make a nomination of a senior AFP member for
the purposes of this provision.
New section 105.20 - Endorsement of order with date and time person taken
into custody
New section 105.20 requires the police officer who is detaining the person
under the initial preventative detention order to endorse on the order the
date on which, and time at which, the person is first taken into custody
under the order as soon as practicable after a person is first taken into
custody. The time the person is taken into custody is relevant to
determining the time when the person must be released from detention under
the initial preventative detention order. This information is also
relevant to extended initial preventative detention orders and continued
preventative detention orders.
New section 105.21 - Requirement to provide name etc.
New subsection 105.21(1) authorises a police officer to request the name
and address of a person if the police officer believes on reasonable
grounds that the person, whose details are unknown, may be able to assist
the police officer in executing a preventative detention order.
New subsection 105.21(2) creates an offence of refusing or failing to
comply with such a request, or giving false information, although this
offence only applies where the police officer has informed the person of
the reason for the request, the police officer has shown evidence that he
or she is a police officer if not in uniform at the time of making the
request and the police officer has complied with any request for
information from the person under new subsection 105.21(4). This offence
is punishable by a fine of 20 penalty units, which under section 4AA of the
Crimes Act is equivalent to $2200.
New subsection 105.21(3) provides that it is defence to the offence created
by new subsection 105.21(2) if the person has a reasonable excuse for
refusing or failing to comply, or providing false information. The note to
subsection 105.21(3) indicates that the person bears the evidential burden
in relation to this matter (see subsection 13.3(3)).
New subsection 105.21(4) provides that if the person the subject of the
request asks the police officer to provide his or her name, the address of
his or her place of duty and his or her identification number if he or she
has such a number, or his or her rank if not, and the police officer
refuses or fails to comply with the request or gives a name, address,
number or rank that is false in a material particular, the police officer
commits an offence. This offence is punishable by a fine of 5 penalty
units, which under section 4AA of the Crimes Act is equivalent to $550.
New section 105.22 - Power to enter premises
New subsection 105.22(1) authorises a police officer to enter premises,
using force that is necessary and reasonable in the circumstances, to
search for, or take into custody, a person in relation to whom a
preventative detention order is in force.
New subsection 105.22(2) limits the ability of a police officer to exercise
the power conferred by subsection (1) by prohibiting a police officer from
entering a dwelling house for the purpose of searching the premises for the
person or taking the person into custody between 9 pm and 6 am unless it
would not be practicable to take the person into custody, either at the
dwelling house or elsewhere, at another time, or it is necessary to do so
in order to prevent the concealment, loss or destruction of evidence of, or
relating to, a terrorist act.
New subsection 105.22(3) provides a definition of the term dwelling house
for the purpose of the section to include a conveyance, and a room in a
hotel, motel, boarding house or club, in which people ordinarily retire for
the night. The definition of dwelling house is in the same terms as the
definition in section 3ZB of the Crimes Act, which confers a power on
police to enter premises, including dwelling houses, for the purposes of
arresting an offender.
New section 105.23 - Power to conduct a frisk search
New section 105.23 authorises a police officer who takes a person into
custody under a preventative detention order, or who is present at that
time to conduct a frisk search of the person. The section authorises the
seizure of any seizable item. This provision is necessary to ensure the
person being taken into custody does not have in their possession anything
that could be used to harm themselves or others or be used to facilitate
their escape from custody.
This provision is in similar terms to section 3ZE of the Crimes Act, which
confers a power on police officers to conduct a frisk search of an arrested
person.
Seizable item and frisk search are defined in section 100.1(1) of the
Criminal Code.
New section 105.24 - Power to conduct an ordinary search
New section 105.24 is in similar terms to new section 105.23, except that
it authorises an ordinary, rather than a frisk search, and also authorises
a police officer to seize evidence of, or relating to, a terrorist act.
This provision is in similar terms to section 3ZF of the Crimes Act, which
confers a power on police officers to conduct an ordinary search of an
arrested person.
Seizable item and ordinary search are defined in section 100.1(1) of the
Criminal Code.
New section 105.25 - Warrant under section 34D of the Australian Security
Intelligence Organisation Act 1979
New subsections 105.25(1) and (2) provide that, if a person is being
detained under a preventative detention order and a warrant under
section 34D of the ASIO Act is in force in relation to the person, and the
police is given a copy of the relevant warrant, the police officer must
take such steps as are necessary in order for the person to be dealt with
in accordance with that warrant.
New subsection 105.25(3) provides that these steps may include releasing
the person from detention under the preventative detention order so that
the person may be dealt with in accordance with the warrant.
The note to new subsection (3) indicates that if the police officer is not
an AFP member, the police officer is not able to release the person without
the approval of a senior AFP member under new subsection 105.26(2).
New subsection 105.25(4) is an avoidance of doubt provision that confirms
that releasing the person from preventative detention for the purposes of
handing the person over so that the person may be questioned or detained
under the ASIO warrant does not extend the period for which the
preventative detention order remains in force in relation to the person.
As indicated by the note to new subsection (4), this is consistent with new
paragraph 105.26(7)(a).
For example, a person could be taken into custody at 9am on Monday under a
preventative detention order that authorises detention for 24 hours. The
person could be handed over to ASIO at 6pm that day, and dealt with under
the ASIO warrant for 20 hours or until 2pm on Tuesday. As the 24 hours
authorised by the preventative detention order has elapsed, it is not
possible to take the person back into preventative detention unless the AFP
member has applied for, and the issuing authority has issued, an extension.
New section 105.26 - Release of person from preventative detention
New subsection 105.26(1) provides that a person may be released from
preventative detention while the order is still in force. The reasons for
release are not limited by the legislation and may include, for example,
that the AFP has obtained information or evidence in relation to the person
and the AFP member wishes to question the person under Part IC of the
Crimes Act 1914 or so the person may be questioned or detained under an
ASIO warrant under new section 105.25.
New subsection 105.26(2) provides that a police officer who is not an AFP
member may not release the person from preventative detention without the
approval of a senior AFP member, and that if requested, a senior AFP member
must agree to the release of the person so that the person can be
questioned in accordance with a warrant issued under section 34D of the
ASIO Act.
New subsection 105.26(3) provides that where a person is released from
preventative detention while the order is still in force, the police
officer who releases the person must give the person a written statement,
signed by the police officer, that the person is being released. However,
new subsection 105.26(4) provides that if the person is released so that
the person may be dealt with in accordance with a warrant under section 34D
of the ASIO Act or under Division 4 of Part IAA of the Crimes Act, there is
no requirement to give the person a signed written statement that the
person is being released.
New subsection 105.26(5) is an avoidance of doubt provision that provides
that a person may be taken to have been released from detention under a
preventative detention order even if the person is released from detention
under the order and immediately taken into custody on some other basis.
New subsection 105.26(6) is a further avoidance of doubt provision that
provides that the person is taken not to be detained under the preventative
detention order during the period during which the person is released from
detention under the order. The limitations and other prohibitions imposed
by Division 105, such as restrictions on the person contacting others, do
not apply during periods of release.
New subsection 105.26(7) is a further avoidance of doubt provision that
provides that, where a person is released from preventative detention under
subsection (1), the period for which the preventative detention order
remains in force is not affected, and despite the person having been
released, the person may be taken into custody and detained under the order
at any time while the order remains in force in relation to the person.
New section 105.27 - Arrangement for detainee to be held in State or
Territory facility
New subsection 105.27(1) authorises a senior AFP member to arrange for the
person to be detained under a preventative detention order at a prison or
remand centre of a State or Territory. This provision provides flexibility
in selecting a suitable venue in which to detain the person and is
necessary to ensure that State and Territory police officers can detain
persons under a preventative detention order.
New subsection 105.27(2) provides that if such an arrangement is made, the
order is taken to authorise the person in charge of the prison or remand
centre to detain the subject while the order is in force in relation to the
subject, and the person in charge of that prison or remand centre or any
other person involved in the subject's detention at that prison or remand
centre who is exercising authority under the order or implementing or
enforcing the order is required to treat the person humanely, in accordance
with new section 105.33. In addition, while the subject is detained at the
prison or remand centre, the senior AFP member who makes the arrangement
for the detention at the State or Territory prison or remand centre is
taken to be the AFP member detaining the subject for the purposes of new
Subdivisions D and E of this Division.
New subsection 105.27(3) provides that the arrangement may include
provision for the Commonwealth meeting the expenses of the subject's
detention at the prison or remand centre. However, there is no requirement
for the arrangement to include such a provision.
Subdivision D-Informing person detained about preventative detention order
New section 105.28 - Effect of initial preventative detention order to be
explained to person detained
New subsection 105.28(1) requires the police officer who is detaining the
person to inform the person of a number of matters as soon as practicable
after a person is first taken into custody under an initial preventative
detention order.
Although a failure to comply with this requirement may constitute an
offence on the part of the police officer under new section 105.45, a
failure to comply does not affect the lawfulness of the person's detention,
under new subsection 105.31(5).
New subsection 105.28(2) sets out those matters, including the fact that
the order has been made, the period of detention, the restrictions that
apply to the people that the person may contact, the fact that an
application may be made to continue detaining the person, any rights the
person has to make a complaint to the Commonwealth Ombudsman or State or
Territory equivalent, or to seek a remedy from a federal court under new
section 105.51, in relation to the order, or the person's treatment in
connection with the detention under the order, the person's entitlement to
contact a lawyer under new section 105.37, and the name and work telephone
number of the senior AFP member who has been nominated under subsection
105.19(5) to oversee the exercise of powers under, and the performance of
obligations in relation to, the order.
New subsection 105.28(3) provides that the police officer is not required
to inform the person being detained of the fact that a prohibited contact
order has been made in relation to the person's detention or the name of a
person specified in a prohibited contact order that has been made in
relation to the person's detention.
New section 105.29 - Effect of continued preventative order to be explained
to person detained
New subsection 105.29(1) requires the police officer who is detaining the
person to inform the person of a number of matters as soon as practicable
after a continued preventative detention order is made in relation to the
person.
Although a failure to comply with this requirement may constitute an
offence on the part of the police officer under new section 105.45, a
failure to comply does not affect the lawfulness of the person's detention,
under new subsection 105.31(5).
New subsection 105.29(2) sets out those matters, including the fact that
the order has been made, the continuing period of detention, the
restrictions that apply to the people that the person may contact, any
rights the person has to make a complaint to the Commonwealth Ombudsman or
State or Territory equivalent, or to seek a remedy from a federal court
under new section 105.51, in relation to the order, or the person's
treatment in connection with the detention under the order, the person's
entitlement to contact a lawyer under new section 105.37, and the name and
work telephone number of the senior AFP member who has been nominated under
subsection 105.19(5) to oversee the exercise of powers under, and the
performance of obligations in relation to, the order.
New subsection 105.28(3) provides that the police officer is not required
to inform the person being detained of the fact that a prohibited contact
order has been made in relation to the person's detention or the name of a
person specified in a prohibited contact order that has been made in
relation to the person's detention.
New section 105.30 - Person being detained to be informed of extension of
preventative detention order
New section 105.30 provides additional requirements on the police officer
if a preventative detention order is extended or further extended. In
these circumstances, the police officer detaining the person under the
order must inform the person of the extension, or further extension, as
soon as practicable after the extension, or further extension, is made.
New section 105.31 - Compliance with obligations to inform
New subsection 105.31(1) provides that the requirements to inform the
person of those matters mentioned above does not apply if the actions of
the person make it impracticable for the police officer to comply with that
subsection.
New subsection 105.31(2) provides that the police officer detaining the
person under the preventative detention order complies with the
requirements to inform the person of certain matters if the police officer
informs the person in substance of the relevant matters (even if this is
not done in language of a precise or technical nature). This provision
ensures that these obligations may be satisfied by substantial compliance,
even where the exact language of the relevant provision is not used.
New subsection 105.31(3) provides that if the police officer who is
detaining the person under the preventative detention order has reasonable
grounds to believe that the person is unable, because of inadequate
knowledge of the English language or a physical disability, to communicate
with reasonable fluency in that language must arrange for the assistance of
an interpreter in complying with the provisions requiring the police
officer to inform the person of certain matters. New subsection 105.31(4)
provides that the assistance of the interpreter may be provided by
telephone, but this is not intended to limit any other manner in which the
interpreter may provide assistance.
New subsection 105.31(5) provides that the lawfulness of a person's
detention under a preventative detention order is not affected by a failure
to comply with the abovementioned requirements.
New section 105.32 - Copy of preventative detention order and summary of
grounds
New subsection 105.32(1) requires the police officer who is detaining the
person under an initial preventative detention order to give the person a
copy of the order and a summary of the grounds on which the order is made.
However, new subsection 105.32(2) does not require information to be
included in the summary required under paragraph 105.32(1)(b) if the
disclosure of the information is likely to prejudice national security
(within the meaning of the National Security Information (Criminal and
Civil Proceedings) Act 2004.
New subsection 105.32(3) ensures that the police officer does not need to
have a copy of the order with the police officer, and does not need to
produce a copy of the order to the person, when the police officer takes
the person into custody. This is to ensure that a police officer may still
take a person into custody under a preventative detention order without
having the order on his or her person at that time, but new subsection (1)
requires the order to be produced as soon as practicable once the person is
in detention.
New subsections 105.32(4) and (5) are equivalent provisions in relation to
continued preventative detention orders, and extended and further extended
preventative detention orders respectively.
In addition, new subsection 105.32(6) authorises the person to request the
police officer who is detaining the person to arrange for a copy of the
order or the summary given to the person under paragraph 105.32(1)(b), or
any extension or further extension of the order to be given to a lawyer
acting for the person, and to make arrangements for a copy of the order, or
the extension or further extension, to be given to the lawyer as soon as
practicable after the request is made.
The notes to subsection 105.32(6) indicate that section 105.37 deals with
the person's right to contact a lawyer and the obligation of the police
officer detaining the person to give the person assistance to choose a
lawyer, and that section 105.40 prevents the person from contacting a
lawyer who is specified in a prohibited contact order.
New subsection 105.32(7) requires the police officer to comply with a
request under new subsection (5). New subsection 105.32(8) provides that
the relevant copy may be faxed or emailed to the lawyer. This subsection
is not intended to limit any other method of providing the lawyer with a
copy of the order.
New subsection 105.32(9) is an avoidance of doubt provision that provides
that the rights conferred with respect to lawyers by this section do not
entitle a lawyer to be given a copy of, or see, a document other than the
order or the extension.
New subsection 105.32(10) is an avoidance of doubt provision that provides
that this section does not require a copy of a prohibited contact order to
be given to any person.
New subsection 105.32(11) requires the police officer who gives a copy of
an initial preventative detention order to the person being detained or the
person's lawyer must endorse on the copy the date on which, and time at
which, the person was first taken into custody under the order.
New subsection 105.32(12) provides that a failure to comply with
subsections (1), (4), (5), (7) or (11) does not affect the lawfulness of a
person's detention under a preventative detention order.
Subdivision E-Treatment of person detained
New section 105.33 - Humane treatment of person being detained
New section 105.33 provides that a person being taken into custody, or
being detained, under a preventative detention order must be treated with
humanity and with respect for human dignity and must not be subjected to
cruel, inhuman or degrading treatment by anyone exercising authority under
the order or implementing or enforcing the order.
The note to this new section indicates that there is an offence for
contravening this provision in new section 105.45.
This is a standard provision in Commonwealth legislation that confer powers
on law enforcement officers, designed to codify the common law and ensure
the person is treated appropriately. The provision is in similar terms to
section 23Q of the Crimes Act, which requires police officers to treat
persons who are under arrest or are protected suspects with humanity and
with respect for human dignity, and not to subject persons who are under
arrest or are protected suspects to cruel, inhuman or degrading treatment.
New section 105.34 - Restriction on contact with other people
New section 105.34 prohibits the person from contacting another person
while being detained under a preventative detention order, except to the
extent that such contact is authorised by sections 105.35, 105.36, 105.37
and 105.39.
The first note to this section indicates that the prohibition only applies
if the person is actually detained under the order - this restriction does
not apply while a person is not detained, even though the order may still
be in force in relation to the person.
The second note to this section indicates that contact that is authorised
by sections 105.35, 105.37 and 105.39 may be restricted by a prohibited
contact order made under new section 105.15 or 105.16.
New section 105.35 - Contacting family members etc.
New section 105.35 entitles the person to contact a number of persons.
Those persons are one of the person's family members (as defined in
subsection 105.35(3), one non-family member with whom the person lives, one
of the person's employer, employees or business associates, as applicable,
or such other person as the police officer detaining the person agrees.
The entitlement is to contact one person from each of the relevant
categories by telephone, fax or email, and may only be to let the person or
persons contacted know that the person is safe but is not able to be
contacted for the time being. The provision enabling such other persons as
the police officer sees fit ensures that the police officer permit the
contact that is most appropriate in the circumstances.
Although the provision only provides an entitlement to contact one person
from each of the relevant categories once during the period of detention,
the AFP can authorise further contact during the course of the detention.
This could be, for example, when the person is informed that the
preventative detention order has been extended.
New subsection 105.35(2) is an avoidance of doubt provision that makes it
clear that the person is not entitled to disclose the fact that a
preventative detention order has been made in relation to the person, the
fact that the person is being detained under the order or the period for
which the person is being detained.
For the purposed of new subsection 105.35(1), family member of a person is
defined in new subsection 105.35(3) to mean the person's spouse, de facto
spouse or same-sex partner, a parent, step-parent or grandparent of the
person, a child, step-child or grandchild of the person, a brother, sister,
step-brother or step-sister of the person, or a guardian or carer of the
person. The definition of family member is the same as the definition of
close family member in section 102.1 of the Criminal Code that is relevant
to the association offence in section 102.8 of the Criminal Code.
The model for permissible contact under this new regime is les restrictive
than that provided by the ASIO Act. Under the ASIO Act there are stricter
limitations on contact for a warrant that authorises questioning and
detention. Subsection 34F(8) provides that a person who has been taken
into custody or detained under Division 3 of the ASIO Act is not permitted
to contact, and may be prevented from contacting, anyone at any time while
in custody or detention. Subsection 34F(9) of the ASIO Act provides that
the detained person is only able to contact the IGIS, the Ombudsman, and a
person whom the warrant or prescribed authority permits him or her to
contact. Subparagraph 34D(2)(b)(ii) of the ASIO Act provides that a
detention warrant must permit the subject of the warrant to contact
identified persons at specified times when the person is in custody or
detention. The person identified in the warrant may be a lawyer of the
person's choice, a person with whom the subject of the warrant has a
particular familial or legal relationship or other persons (see
subsection 34D(4). A detention warrant must permit the person to contact a
single lawyer of the person's choice (see subsection 34C(3B)). However, a
prescribed authority may prevent a person detained under a warrant from
contacting a lawyer of the person's choice where a prescribed authority is
satisfied, on the basis of circumstances relating to a particular lawyer,
that if the subject is permitted to contact that lawyer a person involved
in a terrorism offence may be alerted that the offence is being
investigated or a relevant record or thing may be destroyed, damaged or
altered (see section 34TA). If the subject of the warrant is aged between
16 and 18, the warrant must also permit the person to contact a parent or
guardian, or another person who can represent the subject's interests (see
subsections 34NA(6) and (7)).
New section 105.36 - Contacting Ombudsman etc.
New subsection 105.36(1) provides that the person is entitled to contact
the Commonwealth Ombudsman in accordance with the Complaints (Australian
Federal Police) Act 1981. New section 105.36 should be read in conjunction
with section 22 of the Complaints (Australian Federal Police) Act 1981,
which provides for the manner in which a person who is in custody may make
a complaint to the Commonwealth Ombudsman under that Act.
New subsection 105.36(2) is an equivalent provision enabling a person to
contact the State or Territory equivalent to the Commonwealth Ombudsman
where the person is being held by a police officer of a State or Territory
or in a State or Territory prison or remand centre.
New section 105.37 - Contacting lawyer
New subsection 105.37(1) provides that the person is entitled to contact a
lawyer for limited purposes. The person may seek advice on his or her
rights in relation to the preventative detention order or the treatment of
the person in connection with the order, which includes instructing the
lawyer in federal court proceedings seeking a remedy connected with the
order or the treatment, or in complaint proceedings through the
Commonwealth Ombudsman connected with the order or the treatment of the
person in connection with the person's detention under the order. The
person may also instruct the lawyer to appear for him or her in relation to
any other court proceedings for which an appearance or hearing is to take
place during the period in which the person is to be detained.
New subsection 105.37(2) provides that the person may have contact with the
lawyer in person or by telephone, fax or email.
New subsection 105.37(3) provides that, if the person is either not
entitled to contact a particular lawyer because of section 105.40
(prohibited contact orders) or is not able to contact a particular lawyer,
the police officer who is detaining the person is required to provide
reasonable assistance to the person in choosing another lawyer.
New subsection 105.37(4) provides that in recommending lawyers, the police
officer who is detaining the person may give priority to lawyers who have
been given a security clearance at an appropriate level by the Attorney-
General's Department. However, new subsection 105.37(5) provides that new
subsection (4) does not restrict the person in his or her choice of lawyers
to a lawyer who has a security clearance.
New section 105.38 - Monitoring contact under section 105.35 or 105.37
New subsection 105.38(1) provides that the contact with other people to
which the person is entitled can only occur if it is conducted in such a
way that both the contact and the content and meaning of the communication
can be effectively monitored by a police officer acting under the authority
of the preventative detention order. This is to ensure that the person
does not communicate information that he or she is not entitled to
communicate.
New subsection 105.38(2) provides that , although the contact may take
place in a language other than English, this can only occur if the content
and meaning of the communication that takes place during the contact can be
effectively monitored with the assistance of an interpreter. New
subsection 105.38(3) provides that the interpreter can be a police officer,
but this does not limit non-AFP interpreters from providing assistance.
New subsection 105.38(4) places an obligation on the police officer who is
detaining the person to arrange for the services of an appropriate
interpreter to be provided if this is required. This is to ensure that it
is not more onerous for the person to speak in a language other than
English.
New subsection 105.38(5) ensures the person's communications with his or
her lawyer that occur lawfully under new section 105.37 can not be admitted
in evidence against the person in any proceedings in a court. Even though
it is an offence under new subsection 105.41(7) for a police officer to
disclose such information, this safeguard is necessary to ensure a police
officer is not called upon to provide evidence of what he or she heard
during monitoring conversations likely to be protected by legal
professional privilege.
New section 105.39 - Special contact rules for person under 18 or incapable
of managing own affairs
New section 105.39 recognises the special needs of young persons and those
incapable of managing their own affairs, particularly when taken into
police custody.
New subsection 105.39(1) provides that section 105.39 applies if the person
being detained under a preventative detention order is under 18 years of
age (but at least 16 years of age under new section 105.5) or is incapable
of managing his or her affairs.
New subsection 105.39(2) provides that those categories of persons are
entitled to have contact with a parent or guardian, or another person who
is able to represent the person's interests, while being detained under the
order. The person representing the person's interests can not be an AFP
member or employee, a member of a police force of a State or Territory or
an officer or employee of the Australian Security Intelligence Organisation
(ASIO).
It is important to note that these two categories are completely separate.
Therefore, if a person has a parent or guardian who is an AFP member or
employee, a member of a police force of a State or Territory or an officer
or employee of ASIO, the person is entitled to contact that person. The
exceptions set out in new paragraph (2)(b) are to ensure that a person,
other than a parent or guardian, who is to represent the person's
interests, is a person independent of the police and security services.
New subsection 105.39(3) is an avoidance of doubt provision which ensures
that the person being detained is entitled to see 2 parents, or 2 or more
guardians and is entitled to disclose the fact that a preventative
detention order is in place, the fact that the person is being detained and
the period of detention to each of these people.
New subsection 105.39(4) permits the contact to be in person or via
telephone, fax or email.
New subsection 105.39(5) limits the period for which the person is entitled
to have contact to 2 hours each day, or such longer period as may be
specified in the preventative detention order. The note to this subsection
indicates that an issuing authority may specify a longer period in the
order under new subsection 105.8(7) or 105.12(7).
New subsection 105.39(6) makes it clear that, despite the time limit of 2
hours, or such further time as specified in the preventative detention
order, the police officer who is detaining the person may permit the
person to have contact for longer than this period. While this is not a
right, it permits the police officer to assess the best needs of the person
in the circumstances.
New subsections 105.39(7) to 105.39(10) ensure that contact by young
persons or person unable to manage their own affairs can be effectively
monitored, consistent with the monitoring requirements as set out in new
section 105.38.
New subsection 105.39(7) provides that the contact that the person has with
another person under subsection 105.39(2) must be conducted in a way that
it can be monitored. New subsection 105.39(8) provides that if the
communication takes place in a language other than English, the contact may
continue only if it can be effectively monitored with the assistance of an
interpreter, with new subsection 105.39(9) permitting this interpreter to
be a police officer. New subsection 105.39(10) places an obligation on the
police officer who is detaining the person to arrange for the services of
an appropriate interpreter to be provided if necessary.
New section 105.40 - Entitlement to contact subject to prohibited contact
order
New section 105.40 makes it clear that the entitlement to contact others in
sections 105.35, 105.37 and 105.39 are subject to the existence of any
prohibited contact order made in relation to the person's detention.
Therefore, if the person requested to contact a particular family member
who was specified in a prohibited contact order made under new section
105.15, the person would not be permitted to contact that person, but would
be entitled to request to contact another family member.
This is designed to ensure that the 'preventative' purpose of the order is
not defeated by entitlements to contact others, by permitting the person to
contact another person, including co-conspirators or those who might be in
custody of evidence relating to a terrorist act, and, for example,
instructing such a person to further the terrorist act in the person's
absence, or destroy evidence of a terrorist act.
The model for permissible disclosures under this new regime is also less
restrictive than that provided by the ASIO Act. Under the ASIO Act there
are stricter limitations on contact for a warrant that authorises
questioning and detention. While subjects of ASIO detention warrants are
permitted to contact certain persons, they must not reveal information to
those persons contrary to section 34VAA (secrecy offences). Section 34VAA
protects the effectiveness of intelligence gathering operations by
prohibiting disclosure without authorisation of the existence of the
warrant and any fact relating to the content of the warrant or to the
questioning or detention of a person under the warrant while a warrant is
in force, and by prohibiting disclosure without authorisation of any ASIO
operational information while a warrant is in force and during the period
of two years after the expiry of the warrant.
Section 34VAA(5) of the ASIO Act sets out a number of permitted disclosures
(whereby the secrecy offence would not apply) including disclosures for the
purpose of obtaining legal advice or making complaints to the IGIS,
disclosures permitted by a prescribed authority, and disclosures permitted
by the Director-General of ASIO.
New section 105.41 - Disclosure offences
New section 105.41 creates a number of offences for disclosing information
related to a preventative detention order. Each of the disclosure offences
carries a penalty of 5 years imprisonment.
New subsection 105.41(1) creates an offence for the person who is being
detained to disclose the fact that a preventative detention order has been
made in relation to the person, the fact that the person is being detained
under the order, or the period for which the person is being detained under
the order. The provision only prohibits the disclosure of this information
while the person is being detained. The offence does not prevent
disclosure of information that the person is entitled to make under new
sections 105.36, 105.37 or 105.39, such as information disclosed to the
Commonwealth Ombudsman in accordance with the Complaints (Australian
Federal Police) Act 1981 or communicating with a lawyer for the purposes
permitted in new section 104.34.
New subsection 105.41(2) creates an offence for the person's lawyer to
disclose the fact that a preventative detention order has been made in
relation to the person, the fact that the person is being detained under
the order, the period for which the person is being detained under the
order or any information that the person gives the lawyer in the course of
the contact. The provision only prohibits the disclosure of this
information while the person is being detained. The offence does not
prevent disclosure of information that the lawyer makes for the purposes of
proceedings in a federal court or a complaint to the Commonwealth Ombudsman
or equivalent State or Territory officer or authority. Nor does the
offence prohibit disclosure of information for the purpose of making
representations to the senior AFP member nominated under subsection
105.19(5) in relation to the order, or to another police officer involved
in the detainee's detention, about the exercise of powers under the order,
the performance of obligations in relation to the order or the treatment of
the detainee in connection with the detainee's detention under the order.
There is no provision for the person's lawyer to disclose information he or
she lawfully obtains from the person under new section 105.37 because if
the lawyer wishes to seek advice from a barrister, for example, it should
not be necessary to disclose the fact of the particular person's detention
to that barrister.
New subsection 105.41(3) creates an offence for the disclosure of certain
information by a person who, under new section 105.39, has special contact
with person who is under 18 years of age or incapable of managing his or
her own affairs. A person in this situation commits an offence if they
disclose to another person, who is not another person that the person
lawfully had contact with under new section 105.39, the fact that a
preventative detention order has been made in relation to the person, the
fact that the person is being detained under the order, the period of
detention or any information that the person gives the offender in the
course of the contact. As with new subsections 105.41(1) and (2), the
offence only applies to disclosures made while the person is being detained
under the order, and it does not apply to a disclosure made by the person
for the purposes of a complaint to the Commonwealth Ombudsman or equivalent
State or Territory officer or authority. Nor does the offence prohibit
disclosure of information for the purpose of making representations to the
senior AFP member nominated under subsection 105.19(5) in relation to the
order, or to another police officer involved in the detainee's detention,
about the exercise of powers under the order, the performance of
obligations in relation to the order or the treatment of the detainee in
connection with the detainee's detention under the order.
New subsection 105.41(4) is an avoidance of doubt provision which clarifies
that a person does not contravene subsection 105.41(3) merely by letting
another person know that the person is safe but is not able to be contacted
for the time being.
New subsection 105.41(5) creates an offence for an interpreter assisting in
monitoring contact between the person and another person under new
section 105.35, 105.36, 105.37 or 105.39. An interpreter commits an
offence if they disclose to another person the fact that a preventative
detention order has been made in relation to the person, the fact that the
person is being detained under the order, the period of detention or any
information that the interpreter obtains in the course of assisting in
monitoring the person's contact. As with the previous new offences, the
offence only applies to disclosures made by the interpreter while the
person is being detained under the order.
New subsection 105.41(6) creates an offence for secondary disclosures of
information that was improperly disclosed. A person commits an offence if
another person discloses information to the first person relating to the
existence of a preventative detention order, the fact that the person is
being detained under the order, the period of that detention or any other
information obtained from the person, that disclosure was contrary to new
subsection (1), (2) (3) or (5), or this new subsection, and the first
person discloses the information to a third person. As with the previous
new offences, the offence only applies to disclosures made by the
interpreter while the person is being detained under the order.
This offence ensures that a person to whom information is disclosed in
contravention of these new offences cannot disclose that information to a
third party without themselves being guilty of an offence.
New subsection 105.41(7) creates an offence for a police officer or
interpreter monitoring contact with a lawyer to disclose any information
that was lawfully communicated between the person and the lawyer in the
course of contact under new subsection 105.37(1). Unlike the previous new
offences, this offence applies to disclosures made by the police officer or
interpreter at any time, and is not limited to the period when the person
is being detained under the order.
In conjunction with new section 105.38, this offence ensures that the
police officer, with the assistance of an interpreter where necessary, can
effectively monitor communications between a person and the person's lawyer
to prevent communications from occurring that are not permitted under the
legislation, while also protecting the confidentiality of communications
that are permitted under section 105.37. This offence also works in
conjunction with new subsection 105.38(5), which ensures the person's
communications with his or her lawyer that occur lawfully under new
section 105.37 can not be admitted in evidence against the person in any
proceedings in a court.
New section 105.42 - Questioning of person prohibited while person is
detained
New subsection 105.42(1) prohibits a police officer from questioning a
person while the person is being detained under a preventative detention
order. This is necessary to ensure safeguards relating to the manner in
which a suspect for an offence is to be questioned by a police officer in
other legislation, such as Part IC of the Crimes Act, are not avoided or
defeated because the person is the subject of a preventative detention
order. For example, section 23F of the Crimes Act requires an
investigating official to inform a person who is under arrest or is a
protected suspect that he or she does not have to say or do anything.
New subsection 105.42(1) contains a number of exceptions that authorise the
police officer to ask the person certain questions to determine whether the
person is the person specified in the order, ensure the safety and well-
being of the person, and allow the AFP member to comply with requirements
set out in Division 105 in relation to the person's detention under the
order.
The first note to subsection 105.42(1) indicates that this section does not
apply where the person has been released from detention, even if the
preventative detention order is still in effect. This is to ensure that a
police officer is able to release a person from detention under the order
in order to question the person under other legislation. For example, a
person could be taken into preventative detention under an order, and
following the receipt of additional information, for example from the
execution of a search warrant at the person's premises, the police officer
may wish to question the person in relation to an alleged criminal offence.
In such circumstances, the police officer can release the person from
preventative detention under the order and offer the person the opportunity
to participate in a taped record of interview in relation to the alleged
offence. In such a case, all the protections and safeguards under the
Crimes Act would apply.
The second note to subsection 105.42(1) indicates that a police officer may
commit an offence under section 105.45 if the member questions a person in
contravention of this subsection.
New subsection 105.42(2) prohibits an officer or employee of ASIO from
questioning a person while the person is being detained under a
preventative detention order. There are no exceptions to this general
prohibition.
However, the same issues apply to this offence as with the offence under
subsection 105.42(1), meaning that it is possible for the person to be
released from preventative detention for the purposes of ASIO questioning.
Accordingly, this provision should be read in conjunction with new
section 105.25, which provides that, if a person is being detained under a
preventative detention order and a warrant under section 34D of the ASIO
Act is in force in relation to the person, the AFP member must make all
necessary arrangements to enable the person to be dealt with in accordance
with that warrant.
The rationale for this process is that detention in itself is a factor that
can impact on the reliability of answers to questions. Given the purpose
of the preventative detention regime is to prevent a terrorist attack and
to preserve evidence, and the police and ASIO questioning time was recently
modified to extend questioning for terrorism investigations, it follows
that the existing procedures for questioning should be used. Those
procedures contain safeguards in relation to the questioning of persons,
including persons who are under arrest or are protected suspects.
In addition, an officer or employee of ASIO may commit an offence under
section 105.45 if the officer or employee questions a person in
contravention of this subsection.
New subsection 105.42(3) complements the prohibitions in new
subsections 105.42(1) and (2) by prohibiting an AFP member or an officer or
employee of ASIO from questioning a person while the person is being
detained under an order made under a corresponding State preventative
detention law. Corresponding State preventative detention law is defined
in subsection 100.1(1).
Consistent with the other provisions in this section, the offence does not
apply if the person has been released from detention, even if the
preventative detention order is still in place. In addition, an AFP member
or an officer or employee of ASIO who questions a person in contravention
of this subsection may commit an offence under section 105.45.
New section 105.43 - Taking identifying material
New subsection 105.43(1) prohibits a police officer from taking
identification material from a person who is being detained under a
preventative detention order. It is necessary to provide for the taking of
identification material to determine whether the person is the person
specified in the order (see new section 105.41).
Identification material is defined in the new definition in
subsection 101.(1) to mean prints of the person's hands, fingers, feet or
toes, recordings of the person's voice, samples of the person's handwriting
or photographs (including video recordings) of the person. Identification
material does not include tape recordings made for the purposes of
section 23U or 23V of the Crimes Act 1914.
A police officer who contravenes the prohibition in subsection 105.43(1)
may commit an offence under section 105.45.
New subsections 105.43(2) through (11) provide exceptions to this general
prohibition that are similar to the exceptions in section 3ZJ of the Crimes
Act 1914
New subsection 105.43(2) provides that a police officer who is of the rank
of sergeant or higher may take identification material from the person, or
cause identification material from the person to be taken, only if the
person consents in writing or the police officer believes on reasonable
grounds that it is necessary to do so for the purpose of confirming the
person's identity as the person specified in the order.
New subsection 105.43(3) provides that a police officer may use such force
as is necessary and reasonable in the circumstances to take identification
material from a person under this section. Without this provision, there
could be doubt about whether a police officer was authorised to make the
physical contact with the person that was reasonably necessary to obtain
certain types of identification material, such as the physical contact that
occurs when an impression of a person's fingerprints are made.
New subsection 105.43(4) prohibits a police officer from taking
identification material (other than hand prints, finger prints, foot prints
or toe prints) from the person if the person is under 18 years of age or is
incapable of managing his or her affairs unless a Federal Magistrate orders
that the material be taken. New subsection 105.43(5) provides that, in
deciding whether to make such an order, the Federal Magistrate must have
regard to the age, or any disability, of the person and such other matters
as the Federal Magistrate thinks fit. These provisions are designed to
protect the interests of young people and those who are incapable of
managing their own affairs.
A police officer who contravenes the prohibition in subsection 105.43(4)
may commit an offence under section 105.45.
New subsection 105.43(6) requires that, where identification material is
taken from a person who is under 18 years of age or is incapable of
managing his or her affairs, this must be done in the presence of a parent
or guardian of the person or another appropriate person. An appropriate
person in this section is defined in new subsection 105.43(11) as a person
who is capable of representing the person's interests and is acceptable to
the person and the police officer who is detaining the person. However, an
appropriate person can not be an AFP member or employee, a member of a
police force of a State or Territory, or an officer or employee of ASIO.
A police officer who contravenes the prohibition in subsection 105.43(6)
may commit an offence under section 105.45.
New subsection 105.43(7) permits the taking of identification material from
a young person who is detained under an order, provided the person is
capable of managing his or her affairs, and the person and a parent or
guardian or appropriate person agrees in writing (see new
subsections 105.43(8) and (9)). If the agreement in writing is obtained
from the person, but not a parent or guardian or appropriate person, or
agreement in writing is obtained from a parent or guardian or appropriate
person, but not the person, the material can be taken if a Federal
Magistrate orders that the material be taken. When deciding whether to
make such an order, the Federal Magistrate must have regard to the matters
set out in subsection 105.43(5).
New subsection 105.43(10) makes it clear that identification material may
be taken from a person who is at least 18 years of age and is capable of
managing his or her affairs if the person consents in writing. In such
cases, it is not necessary to obtain the consent of another person or an
order from a Federal Magistrate.
New subsection 105.44 - Use of identification material
New section 105.44 limits the uses of identification material lawfully
taken under new subsection 105.43.
New subsection 105.44 provides that identification material taken from a
person under section 105.43 may only be used to determine whether the
person is the person specified in the order.
New subsection 105.44(3) requires the material to be destroyed as soon as
practicable once 12 months have elapsed since the material was taken, if
proceedings in respect of the preventative detention order, or the
treatment of the person in connection with that order, have not been
brought.
A contravention of the requirement to destroy the material under subsection
105.44(3) may constitute an offence under section 105.45.
New section 105.45 - Offences of contravening safeguards
New section 105.45 creates an offence, with a penalty of 2 years
imprisonment, for conduct which amounts to a contravention of the
safeguards and limitations outlined in new Subdivisions D and E of Division
105.
The offence is designed to ensure compliance with those safeguards and
limitations by AFP members and employees, member of police forces of a
State or Territory, and officers or employees of ASIO.
Subdivision F - Miscellaneous
New section 105.46 - Nature of functions of Federal Magistrate
New subsection 105.46(1) provides that the function of making an order that
identification material be taken that is conferred on a Federal Magistrate
by new section 105.43 is conferred on the Federal Magistrate in a personal
capacity and not as a court or a member of a court.
New subsection 105.46(2) provides that an order made by a Federal
Magistrate under section 105.43 has effect only by virtue of this Act and
is not to be taken by implication to be made by a court.
New subsection 105.46(3) provides that a Federal Magistrate performing a
function of, or connected with, making an order under new section 105.43
has the same protection and immunity as if he or she were performing that
function as, or as a member of, the Federal Magistrates Court.
These provisions ensure that although an order of a Federal Magistrate in
relation to the taking of identification material is not taken to be an
order of, or a view of, the Federal Magistrates Court in relation to any
future proceedings, the individual Federal Magistrate is immune from any
civil or criminal proceedings that could result from that order.
New section 105.47 - Annual report
New subsection 105.47(1) requires the Attorney-General to cause a report
about the operation of Division 105 during the year to be prepared as soon
as practicable after each 30 June.
New subsection 105.47(2) sets out the matters that are required to be
included in the report. These matters include the number of initial and
continued preventative detention orders made during the year, whether a
person was taken into custody under each of those orders and, if so, the
period of detention, particulars of any complaints in relation to the
detention of a person under a preventative detention order made or referred
during the year to the Commonwealth Ombudsman or the Australian Federal
Police and the number of prohibited contact orders made during the year.
New section 105.47(3) requires the Attorney-General to cause copies of the
report to be laid before each House of the Parliament within 15 sitting
days of that House after the report is completed.
New section 105.48 - Ombudsman functions and powers not affected
New section 105.48 makes it clear that Division 105 does not affect a
function or power of the Commonwealth Ombudsman under the Complaints
(Australian Federal Police) Act 1981.
New section 105.49 - Queensland Public interest monitor functions and
powers not affected
New section 105.49 provides that this new Division does not affect any
functions or powers that Queensland public interest monitor or deputy
public interest monitor has under a law of Queensland. In Queensland, all
applications for warrants and related judicial authorisations are attended
by the public interest monitor who provides the case for the person who
would be the subject of the warrant. This new Division is not intended to
affect any powers of that office. It is intended to ensure that the role
of the Queensland public interest monitor in overseeing Queensland law
enforcement officers operating under Queensland legislation in relation to
preventative detention orders is preserved. The provision is not intended
to authorise the Queensland Parliament to legislate to control how powers
are to be exercised under the Bill by Commonwealth officers.
New section 105.50 - Law relating to legal professional privilege not
affected
New section 105.50 is an avoidance of doubt provision which makes it clear
that Division 105 does not affect the law relating to legal professional
privilege.
New section 105.51 - Legal proceedings in relation to preventative
detention orders
New section 105.51 sets out the legal rights in relation to Commonwealth
preventative detention orders, both in relation to review of those orders
and damages associated with the execution of those orders.
New section 105.51(1) provides that proceedings may be brought in a court
for a remedy in relation to a preventative detention order or the treatment
of a person in connection with such an order.
The right to bring proceedings under new section 105.51(1) is limited by
subsection 105.51(2), which provides that a court of a State or Territory
does not have jurisdiction in proceedings for a remedy if those proceedings
are commenced while the order is in force. It may be possible to seek
injunctive relief to stop the detention in the equitable jurisdiction of
the Federal Court. This provision does not prevent the person seeking a
remedy in a State or Territory court once the preventative detention order
has ceased to be in force.
New subsection 105.51(3) provides that subsection 105.51(2) has effect
despite any other law of the Commonwealth (whether passed or made before or
after the commencement of this section). This ensures that, if an
amendment is made to legislation such as the Judiciary Act 1903, unless
that amendment specifically addressed the matters covered by this new
section, such amendments could not be assumed to override this provision.
The right to bring proceedings under new section 105.51(1) is also limited
by subsection 105.51(4), which provides that an application cannot be made
under the Administrative Decisions (Judicial Review) Act 1977 (AD(JR) Act)
in relation to a decision made under Division 105. It is appropriate to
exempt review under that Act as there are requirements in that legislation
that are not suitable in the context of the security environment. This
exemption is also consistent with existing exemptions for decisions that
relate to criminal proceedings and with specific exemptions for decisions
made in relation to ASIO questioning and detention warrants.
New subsection 105.51(5) provides that an application may be made to the
Administrative Appeals Tribunal (AAT) for review of a decision by an
issuing authority to make an initial preventative detention order under
section 105.8 or a decision by an issuing authority to make a continued
initial preventative detention order under section 105.12 or a decision by
an issuing authority to extend or further extend a preventative detention
order. However, new subsection 105.51(5) precludes the making of an
application to the AAT while the order is in force.
New subsection 105.51(6) restricts the exercise of the power of the
Administrative Appeals Tribunal to review a decision referred to in
subsection 105.51(5) to the Security Appeals Division of the Tribunal.
The Security Appeals Division is the appropriate review body as it has
relevant experience, including familiarity with dealing with national
security and related information.
New subsection 105.51(7) outlines the decisions the AAT may make in
relation to a review of a decision referred to in subsection 105.51(5).
The AAT may declare a decision to be void if the Tribunal would have set
the decision aside if an application for review of the decision had been
able to be made to the Tribunal while the order was in force. The AAT may
determine that the Commonwealth should compensate the person in relation to
the person's detention under the order if the Tribunal declares the
decision to be void. Provision is made for the Commonwealth being liable
to pay the compensation determined by the AAT (new subsection 105.51(8)).
New subsection 105.51(9) provides for the Administrative Appeals Tribunal
Act 1975 to apply in relation to an application to the AAT for review of a
decision with the modifications specified in the regulations made under
this Act. This provision will ensure that it is possible to make any minor
amendments that are considered necessary for the review process, such as
minor adjustments to the normal processes of the Security Division.
New section 105.52 - Review by State and Territory courts
New section 105.52 sets out the legal rights in relation to preventative
detention orders where a person has been detained under a Commonwealth and
a State preventative detention order, both in relation to review of those
orders and damages associated with the execution of those orders.
New subsection 105.52(1) provides that new section 105.52 applies only if a
number of criteria are satisfied. Those criteria are that a detainee is
detained under a Commonwealth preventative detention order and a State
preventative detention order that is made under a corresponding State
preventative detention law. Both orders must have been made on the basis
of assisting in preventing the same terrorist act, or a different terrorist
act, occurring within the period or preserving evidence of, or relating to,
the same terrorist act. In addition, the section only applies if the
person who was detained brings proceedings before a court of a State or
Territory in relation to the application for, or the making of, the State
order or the person's treatment in connection with the person's detention
under the State order.
New subsection 105.52(2) authorises the court to review the application
for, and the making of, the Commonwealth order, and the person's treatment
in connection with the person's detention under the Commonwealth order, on
the same grounds as those on which the court may review the application
for, and the making of, the State order, and the person's treatment in
connection with the person's detention under the State order. In addition,
new subsection 105.52(2) authorises the court to grant the same remedies in
relation to the application for, and the making of, the Commonwealth order,
and the person's treatment in connection with the person's detention under
the Commonwealth order, as those the court can grant in relation to the
application for, and the making of, the State order, and the person's
treatment in connection with the person's detention under the State order.
In other words, provided the criteria in new subsection 105.52(1) are
satisfied, there is consistency in the remedies that are available to a
person who was detained.
New subsection 105.52(3) provides that the court may order the Commissioner
of the Australian Federal Police to give the court, and the parties to the
proceedings, the information that was put before the person who issued the
Commonwealth order when the application for the Commonwealth order was
made. This obligation only arises if the person who was detained applies to
the court for review of the application for, or the making of, the
Commonwealth order or the person's treatment in connection with the
person's detention under the Commonwealth order or a remedy in relation to
the Commonwealth order or the person's treatment in connection with the
person's detention under the Commonwealth order and the person applies to
the court for an order under this subsection.
New subsection 105.52(3) does not require information to be given to
the court, or the parties to the proceedings, if the disclosure of the
information is likely to prejudice national security (within the meaning of
the National Security Information (Criminal and Civil Proceedings) Act
2004) (see new subsection 105.52(4). In addition, nothing in new
section 105.52 affects the operation of the National Security Information
(Criminal and Civil Proceedings) Act 2004 in relation to the proceedings
(see new subsection 105.52(6)).
New subsection 105.52(5) makes it clear that new section 105.52 has effect
without limiting subsection 105.51(1), which provides that proceedings may
be brought in a court for a remedy in relation to a preventative detention
order or the treatment of a person in connection with such an order. New
subsection 105.52(5) makes it clear that new section 105.52 has effect
subject to subsection 105.51(2), which provides that a court of a State or
Territory does not have jurisdiction in proceedings for a remedy if those
proceedings are commenced while the order is in force.
New section 105.53 - Sunset provision
New subsection 105.53(1) provides that a preventative detention order, or a
prohibited contact order, that is in force at the end of 10 years after the
day on which this Division commences ceases to be in force at that time.
In addition, new subsection 105.53(2) provides that neither a preventative
detention order nor a prohibited contact order can be applied for or made
after the end of 10 years after the day on which this Division commences.
The sunset provision acknowledges that there are a number of machinery type
provisions that must continue in operation despite the intention that the
Division providing for preventative detention should cease to have effect
at the end of 10 years. These provisions include, for example, the
requirement to destroy identification material and the offence for
disclosing information overheard by an AFP member or interpreter while
monitoring discussions between the person and their lawyer.
Part 2 - Consequential amendments
Part 2 of this Schedule amends the AD(JR) Act to exclude certain decisions
made in relation to control orders and preventative detention orders from
review under that Act.
Item 25
Item 25 excludes decisions made by the Attorney-General under new
section 104.2 and all decisions made under new Division 105 of the Criminal
Code from review under the AD(JR) Act. It is appropriate to exclude these
decisions from such review due to their security nature.
Schedule 5 - Powers to stop, question and search persons in relation to
terrorist acts
This Schedule amends the Crimes Act to introduce a regime of police stop,
question and search powers for the purposes of investigating and preventing
terrorism and other serious offences. These provisions will dovetail with
equivalent State and Territory stop, question and search powers, but will
provide a common approach for police operating in Commonwealth places
throughout Australia.
Crimes Act 1914
Item 1
This item repeals the existing heading to Part IAA of the Crimes Act and
inserts a new heading 'Search, information gathering, arrest and related
powers' which reflects the new provisions in this Part.
Item 2
This item inserts a definition of serious offence in subsection 3C(1) of
the Crimes Act to mean an offence that is punishable by imprisonment for 2
years or more that is a Commonwealth offence, an offence against a State
law that has a federal aspect or an offence against a Territory law.
Serious terrorism offences, a new term also to be defined in subsection
3C(1), are excluded from this definition.
Item 3
This item inserts a definition of serious terrorism offence in subsection
3C(1) of the Crimes Act to mean a terrorism offence (other than an offence
against section 102.8 or Division 104 or 105 of the Criminal Code), an
offence against a State law that has a federal aspect that has the
characteristics of a terrorism offence (other than the characteristics of
an offence against section 102.8 or Division 104 or 105) or an offence
against a Territory law that has the characteristics of a terrorism offence
(other than the characteristics of an offence section 102.8 or Division 104
or 105).
Items 4 to 9
These items amend section 3D of the Crimes Act as a consequence of the
insertion of new Division 3A in Part IAA by item 10. Section 3D sets out
the application of Part IAA of the Crimes Act, and these amendments are
required to ensure that new Division 3A does not limit or exclude the
operation of another law of the Commonwealth, or a law of Territory, that
relates to the search of premises, arrest and related matters, the
stopping, detaining or searching of conveyances or persons, the seizure of
things or the requesting of information or documents from persons.
Item 10
This item inserts a new Division 3A into Part IAA of the Crimes Act dealing
with Powers to stop, question and search persons in relation to terrorist
acts.
New Division 3A - Powers to stop, question and search persons in relation
to terrorist acts
New Subdivision A - Definitions
New section 3UA - Definitions
New section 3UA defines the terms Commonwealth place, police officer,
prescribed security zone, serious offence related item, terrorism-related
item, terrorist act and vehicle for the purposes of the new powers in new
Division 3A.
A Commonwealth place means a Commonwealth place within the meaning of the
Commonwealth Places (Application of Laws) Act 1970. A Commonwealth place
is defined in section 3 of the Commonwealth Places (Application of Laws)
Act 1970 as a place (not being the seat of government) with respect to
which the Parliament, by virtue of section 52 of the Constitution, has,
subject to the Constitution, exclusive power to make laws for the peace,
order, and good government of the Commonwealth.
police officer means a member or special member of the AFP (within the
meaning of the Australian Federal Police Act 1979) or a member of a police
force of a State or Territory.
prescribed security zone means a zone in respect of which a declaration
under section 3UJ is in force. New section 3UJ provides for the making of
declarations by the Minister.
serious offence related item means a thing that a police officer conducting
a search under section 3UD reasonably suspects may be used in a serious
offence, is connected with the preparation for, or the engagement of a
person in a serious offence, or is evidence of, or relating to, a serious
offence. A definition of the term serious offence is inserted into
subsection 3C(1) of the Crimes Act by the Bill, and means an offence that
is punishable by imprisonment for 2 years or more that is a Commonwealth
offence, an offence against a State law that has a federal aspect or an
offence against a Territory law.
terrorism related item means a thing that a police officer conducting a
search under section 3UD reasonably suspects may be used in a terrorist
act, is connected with the preparation for, or the engagement of a person
in, a terrorist act, or is evidence of, or relating to, a terrorist act.
terrorist act has the same meaning as in subsection 100.1(1) of the
Criminal Code.
vehicle means any means of transport and includes a vessel and an aircraft.
These examples are not intended to limit the generality of this
definition.
New Subdivision B - Powers
Subdivision B contains a number of new powers for police officers to stop,
question and search persons in relation to terrorist acts.
New section 3UB - Application of Subdivision
New section 3UB provides that the powers under new Subdivision B may be
exercised by a police officer in relation to a person who is in a
Commonwealth place, if either the officer suspects on reasonable grounds
that the person has just committed, might be committing or might be about
to commit a terrorist act, or where the person is in a prescribed security
zone. New Subdivision C sets out the procedure for places to be declared
as a prescribed security zone under section 3UJ.
New section 3UC - Requirement to provide name etc.
New subsection 3UC(1) provides a police officer with the power to ask a
person for their name, residential address, their reason for being in a
Commonwealth place and evidence of their identity.
New subsection 3UC(2) provides that if a police officer makes a request of
a person under new subsection 3UC(1) and informs the person of the
officer's authority to make such a request and that it may be an offence
not to comply with the request, the person commits an offence if he or she
fails to comply with the request, or gives a name or address which is
materially false. This offence carries a maximum fine of 20 penalty units,
which under section 4AA of the Crimes Act is equivalent to $2200.
The note to new subsection 3UC(2) indicates that the more serious offence
of obstruction, hindering or intimidating a Commonwealth official,
including a designated person, in the execution of his or her functions,
which is found in section 149.1 of the Criminal Code, and which carries a
maximum penalty of imprisonment for 2 years, may also apply.
New subsection 3UC(3) provides a reasonable excuse defence to the offence
created by new subsection 3UC(2). What is regarded as a reasonable excuse
will depend not only on the circumstances of the individual cases but also
the purpose of the provision to which the defence is an exception. An
example of a reasonable excuse might be that the person is unable to comply
because of illness. The defendant bears the evidential burden in relation
to subsection 3UC(3), in accordance with section 13.3(3) of the Criminal
Code.
New section 3UD - Stopping and searching
New subsection 3UD(1) provides a police officer with the power to stop and
detain a person for the purpose of searching for a terrorist related item
on that person. This search may constitute an ordinary search or a frisk
search of the person, a search of any thing that the officer suspects on
reasonable grounds is in the person's immediate control, a search of a
vehicle operated or occupied by the person, or a search of any thing that
the officer suspects on reasonable grounds that the person has brought into
the Commonwealth place. The terms ordinary search and frisk search are
defined in section 3C of the Crimes Act.
New subsection 3UD(2) provides that a police officer, while in the process
of conducting a search under new subsection 3UD(1), must not use more
force, or subject the person to greater indignity, than is reasonable and
necessary for the search to be conducted. Therefore, in the course of
searching a person, a police officer must not do any act that is likely
harm the person being searched, unless the officer believes on reasonable
grounds that his or her act is necessary to undertake the search.
New subsection 3UD(3) provides that a person must not be detained under new
subsection 3UD(1) for longer than is reasonably necessary for a search to
be conducted.
New subsection 3UD(4) provides that when conducting a search of a thing
(including a vehicle) under new subsection 3UD(1) a police officer may use
such force as is necessary and reasonable in the circumstances. However
the police officer must not cause damage to the thing being searched by
forcing it, or a part of it, open, unless the owner or person in possession
of the thing has been given a reasonable opportunity to open the thing or
it is not possible for the police to give the person the opportunity to do
so. An example of this may apply to circumstances where the person cannot
be located or has abandoned the thing, or where the person refuses to
cooperate with the officer.
New section 3UE - Seizure of terrorism related item and serious non-
terrorism offence related items
New section 3UE provides that a police officer may seize a terrorism
related item or a serious offence related item found during a search
pursuant to section 3UD.
New section 3UF - How seized things are to be dealt with
New section 3UF establishes how, and the timeframes in which, seized items
are to be dealt with. This provision is in similar terms to section 14L of
the Australian Federal Police Act 1979.
New subsection 3UF(1) requires a police officer who is responsible for the
seized thing to serve a seizure notice on the owner of the thing or, if the
owner can not be identified after reasonable inquiries, on the person from
whom the thing was seized, within 7 days of the thing being seized.
New subsection 3UF(2) provides that the seizure notice provision under new
subsection 3UF(1) does not apply if the owner of the thing cannot be
identified after reasonable inquiries and the thing was not seized from a
person, or if it is not possible to serve the person required to be served
under new subsection 3UF(1). This latter scenario may occur where the
thing seized had been abandoned or if a false name and address has been
provided when requested by a police officer under new subsection 3UC(1).
New subsection 3UF(3) provides that a seizure notice must identify the
thing seized, the date on which it was seized, the ground or grounds on
which it was seized and state that if the owner does not request the return
of the thing within 90 days after the date of the notice, the thing is
forfeited to the Commonwealth.
New subsection 3UF(4) provides that the owner of the thing may request the
return of a thing seized. New subsections 3UF(5), (6) and (7) provide that
the police officer responsible for the seized thing must return the thing
if requested by the owner, unless there are reasonable grounds to suspect
that, if the thing is returned to the owner, it is likely to be used by the
owner or another person in the commission of a terrorist act or serious
offence, or if the thing is evidence of, or relates to, a terrorist act or
serious offence.
New subsection 3UF(8) provides that if the owner of the thing does not
request the return of the thing within 90 days of the seizure notice, the
thing will be forfeited to the Commonwealth. Where no seizure notice was
served under new subsection 3UF(1) due to the application of new subsection
3UF(2), the thing will be forfeited to the Commonwealth if the owner has
not requested the return of the thing within 90 days of the day that the
thing was seized.
New subsection 3UF(9) provides that where the owner of the thing requests
the return of the thing under subsection 3UF(4), the police officer
responsible for the thing does not return the thing, and a period of 90
days has elapsed since the date of the seizure notice or the seizure day as
applicable, the police officer must, within five more days, either return
the thing to the owner or apply to a magistrate for an order under new
section 3UG.
New section 3UG - Application to magistrate
New section 3UG applies where the owner of the seized thing has requested
the return of the thing under new subsection 3UF(4), and the police officer
responsible for the thing has not returned, and does not intend to return,
the thing to the owner. In this scenario, new subsection 3UG(1), read with
new subsection 3UF(9), provides that the police officer must make an
application to a magistrate for an order in relation to the thing.
New subsection 3UG(2) provides that the owner of the thing must be allowed
to appear and to heard by the magistrate in considering the application.
New subsection 3UG(3) provides that if the magistrate is satisfied that the
thing is evidence of, or relating to, a terrorist act or serious office,
the magistrate must make an order that the thing be retained by the police
officer for the period of time specified in the order.
New subsection 3UG(4) provides that if the magistrate is satisfied there
are reasonable grounds to suspect that if the seized thing is returned to
the owner, the thing is likely to be used by the owner or another person in
the commission of a terrorist act or serious offence, the magistrate may
order the police officer to retain the thing for a specified period, the
thing to be forfeited to the Commonwealth, the thing to be sold and the
proceeds given to the owner, or the thing to be otherwise sold or disposed
of.
New subsection 3UG(5) provides that if the magistrate is not satisfied that
the conditions of new subsection (3) or (4) are met, he or she must order
that the thing be retuned to the owner.
New section 3UH - Relationship of Subdivision to other laws
New section 3UH provides that the powers and duties in new Subdivision B
are additional to, and do not lessen, any powers and duties police officers
have under Commonwealth law or the law of a State or Territory. It also
specifies that these powers and duties do not exclude or limit the
operation of any other law of the Commonwealth or a State or Territory
insofar as these other laws are capable of operating concurrently with the
new laws.
New Subdivision C - Prescribed security zones
New Subdivision C sets out the procedure for declaring a place to be a
prescribed security zone for the purpose of this new Division.
New Section 3UI - Applications for declarations
New section 3UI provides that a police officer may make an application to
the Minister for a declaration that a Commonwealth place be declared to be
a prescribed security zone.
New Section 3UJ - Minister may make declarations
New subsection 3UJ(1) provides that the Minister may declare, in writing, a
specified Commonwealth place to be a prescribed security zone if the
Minister considers that such a declaration would substantially assist in
either preventing a terrorist act occurring or responding to a terrorist
act which has occurred. This regime is designed to dovetail with State and
Territory legislation authorising similar declarations.
New subsection 3UJ(2) provides that a declaration made under new subsection
(1) has immediate effect. New subsection 3UJ(3) provides that the
declaration ceases to have effect 28 days after the declaration is made,
unless the declaration is earlier revoked by the Minister under new
subsection (4).
New subsection 3UJ(4) provides that if the Minister is satisfied that the
grounds for making the declaration under new subsection (1) no longer
exist, such that the declaration is no longer required, the Minister must
revoke the declaration in writing
New subsection 3UJ(5) provides that if the Minister makes or revokes a
declaration under subsection (1) or (4), the Minister must arrange for a
statement to be prepared which specifies that a declaration has been made
or revoked and identifies the prescribed security zone. This statement
must be broadcast by television or radio so as to be capable of being
received within the prescribed security zone, and published in the Gazette
and on the Internet. New subsection 3UJ(6) provides that a failure to
comply with new subsection (5) does not have the effect of making the
declaration or its revocation ineffective.
New subsection 3UJ(7) ensures that despite the publication requirements, a
declaration or revocation made under new subsection (1) or (4) is not a
legislative instrument. This reflects the fact that given the security
nature of this declaration, it is not appropriate for its operation to be
uncertain due to the possibility of disallowance.
New Subdivision D - Sunset provision
New section 3UK -Sunset provision
New subsection 3UK(1) provides that a police officer must not exercise
powers or perform duties under new Division 3A after the end of 10 years
after the day on which the Division commences. The exceptions relating to
powers and duties under sections 3UF and 3UG acknowledges the machinery
type provisions that must continue in operation despite the intention that
this new Division should cease to have effect at the end of 10 years.
These provisions deal with how seized items are to be dealt with and must
continue to operate beyond the end of the 10 year period.
New subsection 3UK(2) provides that, if a declaration under new section3UJ
is in force at the end of 10 years after the day on which the Division
commences, such declaration ceases to be in force at that time.
New subsection 3UK(3) prohibits a police officer from applying for, and a
Minister from making, a declaration after the end of 10 years after the day
on which the Division commences
Schedule 6 - Power to obtain information and documents
This Schedule amends the Crimes Act to introduce new powers to permit
police to request information from organisations for the purposes of
investigating terrorism and other serious offences.
Crimes Act 1914
Item 1
New Division 4B - Power to obtain information and documents
This item inserts a new Division 4B into Part IAA of the Crimes Act 1914.
The new Division provides powers to request information or documents about
terrorist acts from operators of aircraft or ships and to obtain documents
relating to serious terrorism and non-terrorism offences. The Division is
based on models in the Australian Crime Commission Act 2002 and the
Proceeds of Crime Act 2002.
New Subdivision A - Definitions
New Section 3ZQL - Definitions
New section 3ZQL provides definitions for the terms authorised AFP officer
and Federal Magistrate.
An authorised AFP officer means the Commissioner or a Deputy Commissioner
of the AFP, or a senior executive AFP employee who is a member of the
Australian Federal Police and is authorised by the Commissioner in writing.
A Federal Magistrate has the same meaning as in the Federal Magistrates Act
1999.
New Subdivision B - Power to request information or documents about
terrorist acts from operators of aircraft or ships
New section 3ZQM - Power to request information or documents about
terrorist acts from operators of aircraft or ships
New subsection 3ZQM(1) provides that new section 3ZQM applies where an
authorised AFP officer believes on reasonable grounds that an operator of
an aircraft or ship has information or documents that are relevant to a
matter that relates to the doing of a terrorist act (whether or not a
terrorist act has occurred or will occur). Documents include documents in
electronic form. Operator and terrorist act are defined by new subsection
3ZQM(7) to have same meaning as in section 4 of the Customs Act 1901 and
section 100.1 of the Criminal Code respectively.
New subsection 3ZQM(2) provides that the authorised AFP officer may ask the
operator questions relating to the aircraft or ship, or its cargo, crew,
passengers, stores or voyage, that are relevant to the matter, or request
the operator to produce documents relating to the aircraft or ship, its
cargo, crew, passengers, stores or voyage, that are relevant to the matter
and are in the possession or under the control of the operator.
New subsection 3ZQM(3) provides that a person who is asked a question or
requested to produce a document under new subsection (2) must answer the
question or produce the document as soon as practicable.
New subsection 3ZQM(4) provides that a person commits an offence if the
person is an operator of an aircraft or ship and is asked a question or
requested to produce a document under new subsection (2) and fails to
answer the question or produce the document. An offence against this new
subsection is punishable by a maximum fine of 60 penalty units, which under
section 4AA of the Crimes Act is equivalent to $6600.
New subsection 3ZQM(5) provides that strict liability applies to the
offence under new subsection (4). This means that the prosecution does not
need to prove fault for this offence, but that the defence of mistake of
fact under section 9.2 of the Criminal Code is available. The use of
strict liability is considered appropriate because the requirement to prove
fault would undermine the deterrent effect of the offence and there are
legitimate grounds for penalising persons lacking 'fault' in respect of the
offence.
New subsection 3ZQM(6) creates a defence to the offence under new
subsection (4) if the person charged had a reasonable excuse for failing to
answer the question or produce the document. What is regarded as a
reasonable excuse will depend not only on the circumstances of the
individual cases but also the purpose of the provision to which the defence
is an exception.
New Subdivision C - Power to obtain documents relating to serious terrorism
and non-terrorism offences
New section 3ZQN - Power to obtain documents relating to serious terrorism
offences
New section 3ZQN provides the criteria for issuing a notice to a person to
produce documents in relation to a serious terrorism offence. Serious
terrorism offence is defined in subsection 3C(1) of the Crimes Act, and is
explained in relation to item 3 of Schedule 5 above, and includes terrorism
offences (other than the association offence against section 102.8 or the
new offences in new Divisions 104 and 105 of the Criminal Code), offences
against a State law that have a federal aspect and that have the
characteristics of a terrorism offence (other than the association offence
against section 102.8 or the new offences in new Divisions 104 and 105),
and offences against a Territory law that have the characteristics of a
terrorism offence (other than the association offence against section 102.8
or the new offences in new Divisions 104 and 105).
New subsection 3ZQN(1) provides that new section 3ZQN applies where an
authorised AFP officer considers on reasonable grounds that a person has
documents (including in electronic form) that are relevant to and will
assist the investigation of a serious terrorism offence. A person may
include a body corporate by virtue of section 22 of the Acts Interpretation
Act 1901.
New subsection 3ZQN(2) provides that the AFP officer may give a written
notice to the person requiring the person to produce documents that relate
to one or more matters set out in new section 3ZQP, as specified in the
notice, and that are in possession or under the control of the person.
New subsection 3ZQN(3) provides that a notice issued under new subsection
(2) must specify the name of the person to whom the notice is given, the
matters to which the documents to be produced relate and the manner in
which and place at which the documents are to be produced. The notice must
also state that the person must comply with the notice as soon as
practicable and set out the effect of new section 3ZQS, which creates an
offence for failure to comply with the notice. In addition, if the notice
specifies that information about the notice must not be disclosed, the
notice must set out the effect of new section 3ZQT, which creates an
offence for disclosing the existence or nature of a notice.
New section 3ZQO - Power to obtain documents relating to serious offences
New section 3ZQO provides the criteria for issuing a notice to a person to
produce documents in relation to a serious offence. Serious offence (which
does not include serious terrorism offences) is defined in subsection 3C(1)
of the Crimes Act, and is explained in relation to item 2 of Schedule 5
above.
New subsection 3ZQO(1) provides that an authorised AFP officer may apply to
a Federal Magistrate for a notice in respect of a person if the officer
considers on reasonable grounds that the person has documents that are
relevant to and will assist the investigation of a serious offence.
Documents include documents in electronic form.
New subsection 3ZQO(2) provides that if the Magistrate is satisfied on the
balance of probabilities that a person has documents that are relevant to
and will assist the investigation of a serious offence, the Magistrate may
issue a written notice to the person to produce documents that relate to
one or more of the matters set out in new section 3ZQP, as specified in the
notice, and that are in the possession or under the control of the person.
The test differs from the test required to issue a notice for a terrorism
offence in recognition of the fact that a magistrate is independently
coming to the decision, based on sworn or affirmed evidence, to issue a
notice for an offence not related to terrorism.
New subsection 3ZQO(3) provides that the Magistrate must not give the
notice unless the authorised AFP officer or another person has given the
Magistrate, either orally or by affidavit, such further information (if
any) as is required by the Magistrate concerning the grounds on which the
issue of the notice is being sought. This provision permits the Magistrate
to make such further enquiries as he or she sees fit before giving a
notice.
New subsection 3ZQO(4) provides that the notice must set out the same
matters as are required by a notice issued under new subsection 3ZQN(3) as
and described above.
New section 3ZQP - Matters to which documents must relate
New section 3ZQP sets out the matters which a document to be produced under
a notice issued under sections 3ZQN or 3ZQO must relate. The document must
relate to determining one or more of the following matters:
a) whether an account is held by a specified person with a specified
financial institution, and details relating to the account and of any
related accounts;
b) whether a specified person is a signatory to an account with a specified
financial institute, and details relating to the account and of any
related accounts;
c) whether a transaction has been conducted by a specified financial
institution on behalf of a specified person and details relating to the
transaction (including details relating to other parties to the
transaction);
d) whether a specified person travelled or will travel between specified
dates or locations and details relating to the travel (including details
relating to other persons travelling with the specified person);
e) whether assets have been transferred to or from a specified person
between specified dates, and details relating to the transfers (including
details relating to the names of any other person to or from whom the
assets were transferred);
f) whether an account is held by a specified person in respect of a
specified utility (such as gas, water or electricity) and details
relating to the account (including the names of any other persons who
also hold the account);
g) who holds an account in respect of a specified utility (such as gas,
water or electricity) at a specified place, and details relating to the
account;
h) whether a telephone account is held by a specified person and details
relating to the account, including details of calls made to or from the
relevant phone number, the times at which the calls were made or
received, the duration of such calls or the telephone numbers to and from
which such calls were made and received;
i) who holds a specified telephone account and details relating to that
account (including specific details mentioned in paragraph (h) above);
j) whether a specified person resides at a specified place; and
k) who resides at a specified place.
Care has been taken to ensure sensitive material can not be obtained under
the new notice to produce regime. Sensitive material held by health
professionals, lawyers, counsellors and journalists is clearly not caught
by the regime. Such sensitive material might be able to be obtained for
the purposes of an investigation through a search warrant.
New Section 3ZQQ - Powers conferred on Federal Magistrates in their
personal capacity
New subsection 3ZQQ(1) provides that a power conferred on a Federal
Magistrate by new section 3ZQO is conferred on the Magistrate in a personal
capacity and not as a court or a member of a court.
New subsection 3ZQQ(2) provides that a Federal Magistrate need not accept
the power conferred.
New subsection 3ZQQ(3) provides that a Federal Magistrate exercising the
same power conferred by new section 3ZQO has the same protection and
immunity as if he or she were exercising that power as, or as a member of,
the court of which the Magistrate is a member.
New Section 3ZQR - Documents must be produced
New section 3ZQR provides that documents requested under a notice given
under either new section 3ZQN or 3ZQO must be produced, but provides
certain protections to people required to produce documents.
New subsection 3ZQR(1) provides that a person is not excused from producing
a document under new section 3ZQN or 3ZQO on the grounds that disclosure
may contravene any other law, tend to incriminate or expose the person to a
penalty or other liability, disclose material that is protected against
disclosure by a duty of confidence or would be otherwise contrary to the
public interest. This provision effectively ensures that the power to
request documents under this new Division supersedes all other laws.
However, new subsection 3ZQR(2) provides an immunity to ensure that self-
incriminatory disclosures cannot be used against the person who makes the
disclosure, either directly in court or indirectly, to gather other
evidence against the person. The only exception to this immunity relates
to proceedings relating to offences against section 137.1, 137.2 or 149.1
of the Criminal Code, which relate to the provision of false or misleading
information and documents, and obstructing Commonwealth public officials.
This provision is not intended to prevent the information from being used
against a third party, such as an employer, partner or accomplice.
New subsection 3ZQR(3) provides that a person is not liable to any penalty
by reason of his or her producing a document when required to do so under
new section 3ZQN or 3ZQO. This includes both criminal and civil penalties.
New subsection 3ZQR(4) protects claims of legal professional privilege that
anyone may make in relation to documents that must be produced under the
notice.
New section 3ZQS - Offence for failure to comply with notice under
section 3ZQN or 3ZQO
New section 3ZQS creates an offence for a person who is given a notice
under new section 3ZQN or 3ZQO to fail to comply with that notice. This
offence is punishable by a maximum fine of 30 penalty units which under
section 4AA of the Crimes Act is equivalent to $3300.
This penalty is consistent with similar provisions requiring the production
of information such as section 218 of the Proceeds of Crime Act 2002 for
the production of financial information and section 306H of the Migration
Act 1958 for the production of certain documents held by migration agents.
New section 3ZQT - Offence for disclosing existence or nature of notice
New subsection 3ZQT(1) creates an offence for a person who is given a
notice under new section 3ZQN or 3ZQO to disclose the existence or nature
of the notice, if the notice specifies that information about the notice
must not be disclosed. This offence is punishable by a fine of 120 penalty
units, which under section 4AA of the Crimes Act is equivalent to $13200,
or imprisonment for 2 years, or both.
New subsection 3ZQT(2) provides that the offence does not apply where the
person discloses the information to another person in order to obtain a
document required by the notice and that other person is directed not to
inform the person to whom the document relates, where the disclosure is
made to obtain legal advice or legal representation in relation to the
notice, or where the disclosure is made for the purposes of, or in the
course of, legal proceedings.
The note to new subsection (2) indicates that the person bears the
evidential burden of proof in relation to the matters set out in new
subsection (2), in accordance with subsection 13.3(3) of the Criminal Code.
Schedule 7 - Sedition
This Schedule provides for amendments to the Crimes Act, the Criminal Code,
the Migration Act 1958 (Migration Act) and the Surveillance Devices Act
2004.
Crimes Act 1914
The Crimes Act is amended by removing the existing sedition offence, which
is included in an updated form in the Criminal Code.
Item 1
This item makes a technical amendment to paragraph 4J(7)(b) of the Crimes
Act to ensure that the sedition offences in the Criminal Code will also be
excluded from the operation of section 4J. As is the case with the
existing law, the new sedition offence will not be able to be heard
summarily.
Item 2
This item repeals sections 24A to 24E of the Crimes Act. These sections
contain offences relating to seditious enterprises and seditious words
which are to be the new offences in the Criminal Code.
Item 3
This item make a consequential amendment to paragraph 30A(1)(b) of the
Crimes Act (by item 2 of this Schedule) consequential to the repeal of the
definition of seditious intention in section 24A by its inclusion in new
subsection 30A(3) (by item 4 of this Schedule).
Item 4
This item inserts a new subsection (3) into section 30A of the Crimes Act
as a consequential amendment that maintains the substance of the existing
definition of seditious intention. The existing definition of seditious
intention in section 24A of the Crimes Act is repealed by item 2 above.
Existing paragraph 30A(1)(b) of the Crimes Act provides that an unlawful
association includes any body of persons, incorporated or unincorporated,
which by its constitution or propaganda or otherwise advocates or
encourages the doing of any act having or purporting to have as an object
the carrying out of a sedition intention.
New subsection 30A(3) defines seditious intention to mean an intention to
bring the Sovereign into hatred or contempt, to urge disaffection against
the Constitution, the Government of the Commonwealth or either House of the
Parliament, to urge another person to attempt to procure a change,
otherwise than by lawful means, to any matter established by law of the
Commonwealth or to promote feelings of ill-will or hostility between
different groups so as to threaten the peace, order and good government of
the Commonwealth.
The effect of this item is to modernise the definition of seditious
intention from the former definition provided in section 24A by using the
term 'urging' of another person to attempt to procure a change to any
matter established by law in the Commonwealth. The requirement in the
former section 24A, that there must be procurement of 'any matter in the
Commonwealth' has been removed. New paragraph 30A(3)(c) requires that
there must be an urging 'to procure a change in any matter established by
law in the Commonwealth'.
The only other difference between section 24A and the new definition is to
update the language, with the phrase 'classes of Her Majesty's subjects'
substituted with the word 'groups', thereby removing the requirement of a
class being a subject of the Crown and substituting a broader requirement
of 'groups'.
The effect of this is that seditious intention under new paragraph
30A(3)(d) may include an intention to promote feelings of ill-will or
hostility between different groups. These 'groups' may include groups of
people of all types, races, religions, political interests and
nationalities.
Criminal Code Act 1995
The amendments to the Criminal Code insert offences of sedition into Part
5.1 which had formerly only provided for treason offences. The new offence
of sedition in the Criminal Code applies to a person who urges violence
against the Constitution or Government, urges interference in Parliamentary
elections, urges violence within the community or urges others to assist
the enemy. These amendments also clarify the existing provisions relating
to the offence of treason. The inclusion of sedition in the Criminal Code
is consistent with the general policy of moving serious offences to the new
Criminal Code when they are updated. These offences have been update in
line with a number of recommendations of Sir Harry Gibbs in the Review of
Commonwealth Criminal Law, Fifth Interim Report, June 1991 (the Gibbs
Report).
Items 5 and 6
These items amend the headings of Part 5.1 of the Criminal Code and
Division 80 of the Criminal Code respectively to reflect the new sedition
offences contained in this Part and Division.
Item 7
This item inserts a new section 80.1A to define organisation for the
purposes of the treason and sedition offences in Division 80 of the
Criminal Code.
New section 80.1A defines an organisation as a body corporate or an
unincorporated body, whether or not the body is based outside Australia,
consists of persons who are not Australian citizens or is part of a larger
organisation. This definition is consistent with the existing definition
of organisation in subsection 80.1(8), which applies only to the current
treason offences, and is repealed by item 11 below.
Items 8 and 9
These items insert a second note to subsection 80.1(1A) to indicate the
existence of a defence, in section 80.3, to the offence of treason.
Item 10
This item repeals subsections 80.1(3), (4), (6) and (7) consequential to
other amendments made by this Schedule. These provisions currently deal
with matters relevant to the treason offences only, but are intended to
apply to the new sedition offences equally.
New subsections 80.1(3) and (4) dealt with obtaining the Attorney-General's
consent before the issuing of proceedings, which is now provided for by new
section 80.5, inserted by item 12 below.
New subsection 80.1(6) dealt with a defence of good faith, which is now
provided for by new section 80.3, inserted by item 12 below.
New subsection 80.1(7) dealt with geographical jurisdiction of the treason
offences, which is now provided for by new section 80.4, inserted by item
12 below.
Item 11
This item repeals the definition of organisation in subsection 80.1(8)
consequential to the new definition of organisation in new section 80.1A
which applies to the entire Division, instead of just the treason offences.
Item 12
This item adds five new sections at the end of Division 80, to create a new
offence of sedition and to give effect to the offences of treason and
sedition.
New section 80.2 - Sedition
New section 80.2 contains updated versions of the offences of sedition
which are currently in the Crimes Act. These offences occur where a person
urges another person to act to use force or violence to overthrow,
interfere with or threaten the peace, order and good government of the
Commonwealth, or assist an enemy at war with the Commonwealth.
New subsection 80.2(1) provides that a person commits an offence if the
person urges another person to overthrow by force or violence, the
Constitution, the Government of the Commonwealth, a State or a Territory or
the lawful authority of the Government of the Commonwealth. The penalty
for an offence under this new subsection is imprisonment for 7 years. This
is similar in effect to paragraph 24A(d) and section 24D of the Crimes Act.
The penalty is increased from a maximum of 3 years imprisonment in line
with the Gibbs Report.
New subsection 80.2(2) provides that recklessness applies to the elements
of the offence in new subsection (1) that the person is urging the
overthrow of the Constitution, the Government or a lawful authority of
Government. Section 5.4 of the Criminal Code defines the element of
recklessness to mean that a person is reckless with respect to a result if
they are aware of a substantial risk that the result will occur, and having
regard to the circumstances known to them it is unjustifiable to take that
risk.
New subsection 80.2(3) provides that a person commits an offence if the
person urges another person to interfere by force or violence with lawful
processes for an election of a member or members of a House of the
Parliament. The penalty for an offence under this new subsection is
imprisonment for 7 years. This is a new aspect of the offences recommended
by the Gibbs Report.
New subsection 80.2(4) provides that recklessness applies to the elements
of the offence in new subsection (3) that the interference is with lawful
processes for election to a House of the Parliament. The element of
recklessness is defined in section 5.4 of the Criminal Code.
New subsection 80.2(5) provides that a person commits an offence if the
person urges a group or groups (whether distinguished by race, religion,
nationality or political opinion) to use force or violence against another
group or other groups (as so distinguished) and the use of the force or
violence would threaten the peace, order and good government of the
Commonwealth. New subsection 80.2(5) modernises the language from classes
or groups as recommended by the Gibbs Report. The penalty for an offence
under this new subsection is imprisonment for 7 years.
New subsection 80.2(6) provides that recklessness applies to the elements
of the offence in new subsection (5) that the violence is against a group
or groups that are distinguished by race, religion, nationality or
political opinion. The element of recklessness is defined in section 5.4
of the Criminal Code.
New subsection 80.2(7) provides that a person commits an offence if the
person urges another to engage in conduct and intends the conduct to assist
by any means an organisation or country, and the organisation and country
is at war with the Commonwealth, whether or not the existence of a state of
war has been declared and specified by Proclamation made for the purpose of
paragraph 80.1(1)(e) to be an enemy at war with the Commonwealth. The
penalty for an offence under this subsection is imprisonment for 7 years.
Paragraph 80.1(1)(e) provides that it is an offence of treason to engage in
conduct by whatever means with intent to assist a county or organisation
who is an enemy at war with the Commonwealth and is specified by
Proclamation to be an enemy at war with the Commonwealth.
New subsection 80.2(8) provides that a person commits an offence if the
person urges another to engage in conduct and intends the conduct to assist
by any means whatever, an organisation or country, and the organisation or
country is engaged in armed hostilities against the Australian Defence
Force. The penalty for an offence under this subsection is imprisonment
for 7 years.
New subsection 80.2(9) provides for defences for the offences provided for
under new subsections 80.2(7) and 80.2(8) where there is engagement in
conduct by way of, or for the purposes of, the provision of aid of a
humanitarian nature.
The first note to new subsection 80.2(9) indicates that a defendant bears
an evidential burden in relation to the defence provided by this
subsection, pursuant to subsection 13.3(3). Subsection 13.3(6) of the
Criminal Code provides that evidential burden means the burden of adducing
or pointing to evidence that suggests a reasonable possibility that the
matter exists or does not exist.
The second note to new subsection 80.2(9) states that there is a defence in
new section 80.3 for acts done in good faith, which applies to all of the
offences in new section 80.2.
New section 80.3 - Defence for acts done in good faith
New section 80.3 provides for defences to the offences in sections 80.1
(relating to treason) and 80.2 (relating to sedition), for acts done in
good faith.
This section effectively mirrors the defence of good faith contained in
section 24F of the Crimes Act, which applied to the sedition offences in
that Act, and the treason offence in section 80.1 of the Criminal Code (by
virtue of subsection 80.1(6)). The only substantive difference between
section 24F of the Crimes Act and new section 80.3 of the Criminal Code is
that the new provision gives more discretion to a court in considering
whether an act was done in good faith. This is discussed in more detail in
relation to new subsection 80.3(2) below.
New subsection 80.3(1) provides that it is a defence to the offences of
treason and sedition in sections 80.1 and 80.2 if the person who did the
act which would otherwise constitute the offence:
a) was trying in good faith to show that any of the Sovereign, the Governor-
General, the Governor of a State, the Administrator of a Territory, the
advisers of any of these people or a person responsible for the
government of another country are mistaken in any of his or her counsels,
policies or actions;
b) was pointing out in good faith errors or defects, with a view to
reforming those errors or defects in the Government or legislation of the
Commonwealth, a State or a Territory, the Constitution or the
administration of justice of or in the Commonwealth, a State, a Territory
or another country;
c) was urging in good faith another person to attempt to lawfully procure a
change to any matter established by law in the Commonwealth, a State, a
Territory or another country;
d) was pointing out in good faith any matters that are producing, or have a
tendency to produce, feelings of ill-will or hostility between different
groups, in order to bring about the removal of those matters; or
e) was doing anything in good faith in connection with an industrial
dispute or an industrial matter.
The note to new subsection 80.3(1) indicates that a defendant bears an
evidential burden in relation to the defences included in the new
subsection, in accordance with subsection 13.3(3).
New subsection 80.3(2) provides that a court may take into account any
relevant matter in considering a defence under new subsection (1),
including whether the acts were done:
a) for a purpose intended to be prejudicial to the safety or defence of the
Commonwealth;
b) with the intention of assisting an enemy which is at war with the
Commonwealth and specified by Proclamation made for the purpose of
paragraph 80.1(1)(e) to be an enemy at war with the Commonwealth;
c) with the intention of assisting another country, or an organisation,
that is engaged in armed hostilities against the Australian Defence
Force;
d) with the intention of assisting a proclaimed enemy of a proclaimed
country (within the meaning of subsection 24AA(4) of the Crimes Act);
e) with the intention of assisting persons specified in paragraphs
24AA(2)(a) and (b) of the Crimes Act; or
f) with the intention of causing violence or creating public disorder or a
public disturbance.
The references to section 24AA of the Crimes Act are references to offences
of treachery. A proclaimed country means a country proclaimed to be an
ally, while a proclaimed enemy of a proclaimed country means an enemy
proclaimed to be an enemy of that ally.
New subsection 80.3(2) differs from subsection 24F(2) of the Crimes Act.
Subsection 24F(2) provides that if the acts were done for any of the
purposes, or with any of the intentions, set out above, the act is taken
not to be an act done in good faith. In contrast, new subsection 80.3(2)
provides that these are matters to which a court may have regard, but that
these matters are not in and of themselves conclusive that a particular act
was not done in good faith. This difference ensures wider application of
the defence of good faith and ensures greater judicial discretion in
considering whether this defence applies.
New section 80.4 - Extended geographical jurisdiction for offences
New section 80.4 provides that the extended geographical jurisdiction -
Category D, provided for in section 15.4 of the Criminal Code, applies to
the offences in Division 80. The effect of this is for the offences to
apply whether the conduct constituting the alleged offence or a result of
the conduct constituting the alleged offence occurs in Australia or outside
of Australia, and in relation to any person, whether resident or non-
resident, citizen or non-citizen, of Australia, at the time of committing
the offence.
This extended geographical jurisdiction applied to the existing treason
offence by virtue of subsection 80.1(7), repealed by item 10 of this
Schedule.
New section 80.5 - Attorney-General's consent required
New subsection 80.5(1) provides that proceedings for an offence against
Division 80 must not be commenced without the Attorney-General's written
consent. This provision applied to the existing treason offence by virtue
of subsection 80.1(3), repealed by item 10 of this Schedule.
New subsection 80.5(2) provides that even though proceedings may not be
commenced without the Attorney-General's consent as required by new
subsection (1), a person may be arrested for an offence against Division
80, a warrant for the arrest of a person for such an offence may be issued
and executed, and the person may be charted and be remanded in custody or
on bail. However, no further proceedings may be taken until that consent
has been obtained and the person must be discharged if proceedings are not
continued within a reasonable time. This provision applied to the existing
treason offence by virtue of subsection 80.1(4), repealed by item 10 of
this Schedule.
The effect of this subsection is to provide firm safeguards to a person
arrested or charged with an offence under Division 80. Those safeguards
ensure that no actual court proceedings may be commenced until the Attorney-
General has provided written consent to those proceedings, or where
proceedings are not continued within a reasonable time, the person must be
discharged.
New section 80.6 - Division not intended to exclude State or Territory law
New section 80.6 provides that Parliament intends that Division 80 is not
to apply to the exclusion of a law of a State or Territory to the extent
that the law is capable of operating concurrently with Division 80. This
is to ensure that these laws do not exclude any State or Territory laws
dealing with the urging or inciting terrorist activity, or other seditious
activities.
Migration Act 1958
Items 13 and 14
These items make technical amendments to the Migration Act as a consequence
of the amendments made to the Crimes Act and the Criminal Code by this
Schedule. Item 13 removes a redundant cross-reference to a section of the
Crimes Act that has been repealed, while item 14 ensures that the reference
to serious offence in section 203 of the Migration Act, which already
includes the treason offences, also includes the sedition offences.
Surveillance Devices Act 2004
Items 15 to 18
These items make technical amendments to the Surveillance Devices Act 2004
both as a consequence of the amendments made to the Criminal Code by this
Schedule and in an attempt to tidy up paragraph 30(1)(a) of that Act.
Items 15 and 17 repeal subparagraphs 30(1)(a)(v) and (vii) respectively,
which refer to Divisions 72 and 101, 102 and 103 respectively. These
Divisions are now referred to in subparagraph 30(1)(a)(viii), as amended by
item 18.
Item 16 removes the reference to section 80.1 of the Criminal Code from
subparagraph 30(1)(a)(vi). Division 80, which now includes both the
treason and sedition offences, is referred to in subparagraph
30(1)(a)(viii), as amended by item 18.
Schedule 8 - Optical surveillance devices at airports and on board aircraft
This Schedule inserts a new Division 10 into Part 4 of the Aviation
Transport Security Act 2004 (ATS Act) which will enable the Minister to
determine a code regulating and authorising the use of optical surveillance
devices, such as closed-circuit television at airports. The use of closed-
circuit television will assist in the provision of aviation transport
security.
Item 1
This item amends the title of the ATS Act to substitute the word 'related'
with the word 'other'. This amendment is required to allow for the
extended purposes included in the new Division 10 of Part 4.
Item 2
This item adds a note at the end of subsection 3(1) of the ATS Act to
clarify that the new Division 10 of Part 4, and specifically section 74J,
sets out additional purposes of the ATS Act.
Item 3
This item inserts the additional purpose provided for in the new section
74J within section 4 of the ATS Act, which provides a simplified overview
of the Act.
Item 4
This item inserts a definition of optical surveillance device into section
9 of the ATS Act, defining the term to have the same as in the Surveillance
Devices Act 2004, to ensure consistency between these two pieces of
legislation.
Item 5
This item inserts a new Division 10 into Part 4 of the ATS Act.
New Division 10 - Optical surveillance devices
New section 74J - Purposes of this Division
New section 74J outlines the purposes of new Division 10 to include
preventing and detecting contraventions of, or offences against, the ATS
Act or any other laws of the Commonwealth, at airports and on board
aircraft, as well as safeguarding the interests of the Commonwealth more
generally.
New section 74K - Minister may determine code
New subsection 74K(1) provides the Minister with a power to, by legislative
instrument and for the purposes of this Division, determine a code which
authorises and regulates the use of optical surveillance by aviation
industry participants, to monitor and record activities at security
controlled airports, on aircraft at security controlled airports or other
prescribed aircraft, including baggage holds, or a vehicle that is on board
an aircraft referred to earlier or at a security controlled airport. For
the avoidance of doubt, the code made pursuant to new section 74K is
intended to override any law of a State and Territory.
New subsection 74K(2) anticipates that the code may also authorise and
regulate the use or disclosure of information obtained through the use of
an optical surveillance device pursuant to the code.
New subsection 74K(3) allows for regulations to be made for the purpose of
creating offences within the code which may carry penalties of up to 50
penalty units, which under section 4AA of the Crimes Act is equivalent to
$5500.
Schedule 9 - Financial transaction reporting
This Schedule contains amendments to the Financial Transaction Reports Act
1988 (FTR Act) to better implement the requirements of the Financial Action
Task Force on Money Laundering's (FATF's) Special Recommendations VI (SR
VI), VII (SR VII) and IX (SR IX) on Terrorist Financing.
The FTR Act is part of Australia's anti-money laundering and counter-
terrorist financing regime. The FTR Act creates a regime of verification
of identification records, reporting and record-keeping obligations
designed to reduce the incidence, and facilitate the tracking, of money
laundering and terrorist financing. Consideration is being given to other
reforms to strengthen Australia's anti-money laundering and counter
terrorist financing standards as set out in the 40 FATF Recommendations and
the nine Special Recommendations on Terrorist Financing.
SR VI deals with the licensing or registration of persons or legal entities
involved in the transmission of value or money, including through informal
networks (items 5 and 11 of this Schedule). SR VII requires the inclusion,
with funds transfer instructions, of customer information about the sender
of the funds (items 10, 12, 13, 16 and 17 of this Schedule). SR IX deals
with the adoption of systems to help detect the physical cross-border
transfer of currency and bearer negotiable instruments (items 1, 2, 6, 8,
9, 14, 15 and 18 to 24 of this Schedule).
Financial Transaction Reports Act 1988
Item 1
This item inserts a definition of bearer negotiable instrument into
subsection 3(1) of the FTR Act. This definition draws on the definition of
bearer negotiable instruments in the Interpretative Note to FATF's SR IX on
cash couriers. The definition covers any type of instrument that the
holder, or some other person, can exchange for cash or a deposit of
equivalent value in a bank account.
Item 2
This item inserts a definition of bill of exchange into subsection 3(1) of
the FTR Act. The term is included in the definition of bearer negotiable
instrument inserted by item 1 and is defined to have the same meaning as in
paragraph 51(xvi) of the Constitution, but does not include a cheque unless
the cheque is a cheque that an authorised deposit-taking institution (ADI),
bank or other institution draws on itself. ADI is defined in subsection
3(1) of the FTR Act to mean a body corporate that is an ADI for the
purposes of the Banking Act 1959 or the Reserve Bank of Australia or a
person who carries on State banking within the meaning of paragraph
51(xiii) of the Constitution.
The term bill of exchange can be understood to include an unconditional
order in writing addressed by one person to another, signed by the person
giving it, requiring the person to whom it is addressed to pay on demand or
at a fixed or determinable future time a sum certain in money to or to the
order of a specified person or to bearer. The reference to the
constitutional meaning of the term is a mechanism to enable the meaning of
the term to incorporate continuing judicial interpretation.
Items 3 and 4
These items repeal the definition of non-reportable currency transfer from,
and insert the definition of non-reportable transfer into, subsection 3(1)
of the FTR Act respectively. Non-reportable transfer carries the same
meaning as the existing definition of non-reportable currency transfer.
This is a technical amendment to correct an error in the FTR Act.
Item 5
This item inserts a definition of prescribed particulars into subsection
3(1) of the FTR Act. Prescribed particulars are defined to mean
particulars prescribed by the regulations made for the purposes of new
sections 24E and 24F, which are inserted by item 11.
Under new section 24F, the prescribed particulars of a person who falls
within subparagraph (k)(ib) or paragraph (l) of the definition of cash
dealer in subsection 3(1) of the FTR Act would be placed on a register of
providers of remittance services maintained by the Director of the
Australian Transaction Reports and Analysis Centre (AUSTRAC). It is
intended that the types of details which may be prescribed particulars for
the purposes of the regulations include information such as the name,
business address, phone and fax numbers, Australian Business Number (ABN)
and email address of relevant persons.
Item 6
This item inserts a definition of promissory note into subsection 3(1) of
the FTR Act. This term is included in the definition of bearer negotiable
instrument inserted by item 1 and is defined to have the same meaning as in
paragraph 51(xvi) of the Constitution. The term is defined to have the
same meaning as in paragraph 51(xvi) of the Constitution. This is a
mechanism to enable incorporation of continuing judicial interpretations of
the term.
The term promissory note can be understood to include an unconditional
promise in writing made by one person to another, signed by the maker,
engaging to pay on demand or at a fixed or determinable future time a sum
in money to or to the order of a specified person or bearer.
Item 7
New section 3A - Translation of foreign currency to Australian currency
This item inserts new section 3A into the FTR Act. This new section
provides that in determining whether an amount of foreign currency
(including an amount in which a bearer negotiable instrument or other
document is denominated) is not less than an Australian dollar amount, the
amount of foreign currency is to be translated into Australian dollars
using the exchange rate applicable at the relevant time.
For example, the relevant time for translating foreign currency to
Australian currency for the purpose of section 3A would be when a person
brings foreign currency into Australia and fills out a report under section
15.
Item 8
This item amends the heading to Division 1A of Part II consistent with the
inclusion in Division 1A of a new provision concerning bearer negotiable
instruments.
Item 9
New section 15AA - Reports in relation to bearer negotiable instruments
taken into or out of Australia
This item inserts new section 15AA into Division 1A of Part II of the FTR
Act to better implement FATF SR IX. The Interpretative Note to SR IX: Cash
Couriers states that countries may meet their obligations under SR IX by
implementing either a declaration or a disclosure system and that a country
does not have to use the same type of system for incoming and outgoing
cross-border transportation of currency or bearer negotiable instruments.
Australia already has a declaration system in place under the FTR Act for
transportation of currency into and out of Australia which is designed to
monitor cash amounts of $10,000 or more (see section 15 of the FTR Act).
New subsection 15AA(1) provides that if a person, in response to a request,
produces a bearer negotiable instrument that the person has with him or her
to an officer, or an officer conducts an examination or search and finds a
bearer negotiable instrument, then the officer may request the person to
prepare a report for the Director of AUSTRAC (new subsection 15AA(6)
defines officer as a police or customs officer). This subsection provides
a power, not an obligation, on the officer, to allow the officer
flexibility to determine in each case whether or not a report is required.
In some instances an officer may consider that it would be more appropriate
for further criminal investigation to take place. In such instances
AUSTRAC would be informed of the results of that investigation under usual
AUSTRAC/police protocols.
There is no monetary limit on the face value of a bearer negotiable
instrument that triggers a report under section 15AA. In practice a person
will only be required to produce a bearer negotiable instrument when asked
by an officer. It is not proposed that the currency declaration system
that applies to all persons travelling into or out of Australia be extended
to bearer negotiable instruments. This 'disclosure when asked' system will
enable more targeted use of customs and police resources. For example,
officers may request disclosure by particular persons about whom they might
already have some relevant intelligence information.
New subsection 15AA(2) sets out the requirements for the form and content
of a report under new subsection (1), which are for the report to be in the
approved form, contain the reportable details and be signed by the person
giving the report. New subsection (6) defines reportable details as those
set out in Schedule 3AA to the FTR Act, which is inserted by item 21, and
includes such matters as the amount payable under each bearer negotiable
instrument.
New subsection 15AA(3) provides that the report must be given to an officer
as soon as possible after the request is made. It is intended that a
person who is requested to prepare a report will do so immediately upon
request on an approved form provided by the officer requesting the report.
New subsection 15AA(4) creates an offence punishable by two years
imprisonment if a person is requested to prepare a report and fails to
comply with the request or fails to give the report to an officer in
accordance with new subsection (3).
New subsection 15AA(5) provides that the officer must, as soon as
practicable after receiving the report, forward it to the Director of
AUSTRAC.
As mentioned above, new subsection 15AA(6) defines officer for the purposes
of this new section to mean a police officer or a customs officer. Both of
these terms are already defined in subsection 3(1) of the FTR Act.
New subsection 15AA(6) also defines reportable details to mean details
referred to in new Schedule 3AA to the FTR Act, which is inserted by item
21 of this Schedule. These details are the equivalent of the reportable
details for the purposes of section 15, set out in Schedule 3 to the FTR
Act, and ensure that reports about currency and reports about bearer
negotiable instruments are consistent.
Item 10
New Division 3A - Customer information to be included in international
funds transfer instructions
This item inserts new Division 3A into Part II of the FTR Act. This
new Division better implements SR VII, which requires the inclusion,
with funds transfer instructions, of customer information about the
customer sending the funds. SR VII was developed with the objective of
preventing terrorists and other criminals from having unfettered access
to wire transfers for moving their funds and for detecting such misuse
when it occurs.
Existing Division 3 of Part II of the FTR Act, in particular
section 17B, currently requires cash dealers (defined in section 3 of
the FTR Act) to report to AUSTRAC any international funds transfer
instructions (IFTIs) transmitted into or out of Australia. New
Division 3A requires cash dealers in Australia to include required
information about the ordering customer with an IFTI when transmitting
IFTIs out of Australia, and creates offences for failure to include
this information.
New section 17FA - Customer information in international funds transfer
instructions transmitted out of Australia
New subsection 17FA(1) provides that where a cash dealer in Australia
sends an IFTI out of Australia and the cash dealer is acting on behalf
of, or at the request of, another person who is not an ADI and/or the
cash dealer is not an ADI, the IFTI must also include customer
information relating to the IFTI.
The provision is intended to apply to situations where, for example, a
bank sends an IFTI for a customer, or a cash dealer other than a bank,
but it is not intended to apply to situations where a bank sends an
IFTI on its own behalf. This is because the situation where a bank
sends an IFTI on its own behalf is recognised under SR VII as a reduced
risk situation for terrorist financing.
An ADI is an authorised deposit taking institution, and is defined in
section 3 of the FTR Act to mean a body corporate that is an ADI for
the purposes of the Banking Act 1959 or the Reserve Bank of Australia
or a person who carries on State banking within the meaning of
paragraph 51(xiii) of the Constitution.
The note to new subsection 17FA(1) indicates that a failure to comply with
this obligation is an offence under paragraph 28(1)(a) of the FTR Act.
New subsection 17FA(2) provides that if a cash dealer transmits an
instruction on behalf of, or at the request of, another person, the cash
dealer is taken to be the sender of the instruction. The subsection also
provides that if a person, not being a cash dealer, transmits an
instruction on behalf of, or at the request of, a cash dealer, the cash
dealer is taken to be the sender of the instruction. This ensures
consistency with section 17B and means that the obligation under section
17FA will apply to cash dealers who currently have obligations to report
IFTIs to AUSTRAC.
New subsection 17FA(3) defines customer information in relation to an
IFTI transmitted out of Australia to mean the ordering customer's name
and full business or residential address (not being a post office box,
so this information can assist the relevant authorities to locate the
person if required) and either the number of the ordering customer's
account with the cash dealer or, if the customer does not have an
account with the cash dealer, the identification code assigned to the
IFTI by the cash dealer. This definition is consistent with FATF SR
VII and with information currently reported to AUSTRAC under section
17B.
The details of information required to be reported under section 17B
can be found in regulation 11AA of the Financial Transaction Reports
Regulations 1990 (the Regulations). Paragraphs 11AA(1)(g), (h) and (j)
of the Regulations specify that information which is the same as the
customer information required to be collected under new subsection
17FA(3).
New subsection (3) also defines financial organisation to mean an
organisation that transmits, receives, handles or executes IFTIs and
ordering customer to mean a person or organisation (including a
financial organisation) on whose behalf an instruction is sent.
New section 17FB - Customer information in international funds transfer
instructions transmitted into Australia
New section 17FB deals with IFTIs transmitted into Australia. IFTIs
transmitted into Australia are regulated by foreign law, and therefore
the information that is transmitted into Australia by an ordering
organisation is not information that Australian authorities can readily
control. This accounts for the different requirements from those under
new section 17FA, where information is transmitted out of Australia and
Australian law applies.
New subsection 17FB(1) provides that this new section applies if a cash
dealer is the recipient of two or more IFTIs transmitted into Australia
by a particular ordering organisation and at least one of the IFTIs
does not include customer information relating to the IFTIs. The
intention behind this application provision is to ensure that
transactions are only caught where there is a pattern of IFTIs
transmitted into Australia without customer information.
New subsection 17FB(2) provides the Director of AUSTRAC with a power to
direct a cash dealer in writing to request the ordering organisation to
include in all future IFTIs transmitted to it by the ordering
organisation, customer information relating to those IFTIs. The
direction must state that the cash dealer is to comply with the request
within 14 days after the date of the direction.
This information assists law enforcement authorities in detecting,
investigating and prosecuting terrorists or other criminals and tracing
the assets of terrorists or other criminals. The information is also
required to assist in analysing suspicious or unusual activity and to
assist in the identification and reporting of suspicious activity.
New subsection 17FB(3) provides that it is an offence to be given a
direction under new subsection 17FB(2) and not comply with it within 14
days after the date of the direction. This offence is punishable by
imprisonment for two years. It is important to note that the
obligation on the Australian cash dealer is only to request the
ordering organisation to provide the information. The Australian cash
dealer does not commit an offence if it requests the ordering
organisation to provide the information but the ordering organisation
does not do so.
The note to new subsection 17FB(3) indicates that under subsection
4B(2) of the Crimes Act a court may impose a fine instead of, or in
addition to, the two year term of imprisonment.
New subsection 17FB(4) provides that where a cash dealer receives a
request from the Director of AUSTRAC under new subsection 17FB(2), the
cash dealer must report to the Director in writing on the response, or
lack of response, from the ordering organisation in relation to the
request. The cash dealer must respond to the Director of AUSTRAC
within 28 days after the date of the direction or within such further
time as is allowed by the Director.
The note to new subsection (4) indicates that failure to comply with
the timeframe imposed to report to the Director of AUSTRAC is an
offence under paragraph 28(1)(a) of the FTR Act. The maximum penalty
for such an offence is two years imprisonment.
New subsection 17FB(5) is an avoidance of doubt provision which
clarifies that a cash dealer may make available funds received from an
IFTI even if the IFTI transmitted to the cash dealer did not include
customer information relating to that IFTI. This provision is inserted
to ensure that the ordinary course of business is not disrupted by
these amendments.
New subsection 17FB(6) defines customer information to have the same
meaning as in new section 17FA except that it includes, as alternatives
to the ordering customer's full business or residential address, the
ordering customer's date and place of birth or a unique identification
number given to the ordering customer by either a foreign government or
the ordering organisation. This change recognises that foreign law may
require the collection of different information to that required under
Australian law.
New subsection 17FB(6) also defines financial organisation and ordering
customer consistent with the meanings given in new section 17FA, and
ordering organisation, in relation to an IFTI, to mean the financial
organisation that the ordering customer originally asked to send the
IFTI or that initiated the sending of the IFTI on its own behalf.
Item 11
New Part IIIB - Register of Providers of Remittance Services
This item inserts new Part IIIB into the FTR Act to better implement FATF's
SR VI. This recommendation requires the licensing or registration of
persons or legal entities that provide a service for the transmission of
money or value, including through informal networks. SR VI is particularly
targeted at alternative remittance providers who provide funds transfer
services through informal mechanisms. FATF has identified alternative
remittance providers as a common conduit for terrorists to transfer funds.
Under Part IIIB, cash dealers who provide remittance services will be
required to be registered.
New section 24E - Advice by certain cash dealers to the Director
New subsection 24E(1) provides that a cash dealer who is not a financial
institution or a real estate agent acting in the ordinary course of real
estate business, and:
a) who carries on a business of remitting or transferring currency or
prescribed commercial instruments, or making electronic funds transfers,
into or out of Australia on behalf of other persons, or arranging for
such remittance or transfer (subparagraph (k)(ib) of the definition of
cash dealer in subsection 3(1) of the FTR Act);
b) who carries on a business in Australia of arranging, on behalf of other
persons, funds to be made available outside Australia to those persons or
others (subparagraph (l)(i) of the definition of cash dealer in
subsection 3(1) of the FTR Act); or
c) who carries on a business in Australia of, on behalf of other persons
outside Australia, arranging for funds to be made available, in
Australia, to those persons or others (subparagraph (l)(ii) of the
definition of cash dealer in subsection 3(1) of the FTR Act);
must advise the Director of AUSTRAC in writing of the cash dealer's name
and all prescribed particulars, and of the fact that they provide those
services, so that AUSTRAC can maintain the person's details on a register
created under new section 24F.
New subsection 24E(2) provides that it is an offence for a cash dealer to
whom new subsection (1) applies to fail to notify the Director of AUSTRAC
in writing within 30 days of commencement of the section or of starting
their business (whichever is the later) with the relevant details. This
offence is punishable by imprisonment for two years.
The note to new subsection (2) indicates that under subsection 4B(2) of
the Crimes Act a court may impose a fine instead of, or in addition to,
the two year term of imprisonment.
Prescribed particulars is defined in the amendment to subsection 3(1) of
the FTR Act, inserted by item 5, to mean particulars prescribed by the
regulations for the purposes of new sections 24E and 24F. The regulations
are likely to include details such as the name, business address, phone and
fax numbers, Australian Business Number and email address of the cash
dealer.
New section 24F - Register of Providers of Remittance Services
New subsection 24F(1) provides that the Director of AUSTRAC must maintain a
register of cash dealers to be known as the Register of Providers of
Remittance Services, which includes the names and all prescribed
particulars of the cash dealers. The cash dealers to whom new section 24F
applies are those described in the explanation of new section 24E above.
Similarly, the prescribed particulars that apply to this section are those
described above.
New subsection 24F(2) provides that the Register may be maintained
electronically.
New subsection 24F(3) enables an authorised officer of AUSTRAC to require a
cash dealer to provide their name and all prescribed particulars, where the
authorised officer has reason to believe that the cash dealer is a cash
dealer of a kind described in the explanation of new section 24E above and
that the Director does not have those details required by new subsection
(1). The authorised officer may request these details either orally or in
writing, and if so, must inform the cash dealer of the offence provision
contained in new subsection 24F(4).
New subsection 24F(4) provides that it is an offence for a person who is
requested to provide information under new subsection (3) to fail to
provide their name and all prescribed particulars within 14 days after the
day on which the request for information is made. This offence is
punishable by imprisonment for two years.
The note to new subsection (4) indicates that under subsection 4B(2) of
the Crimes Act a court may impose a fine instead of, or in addition to,
the two year term of imprisonment.
The proposed Register of Providers of Remittance Services will not be a
legislative instrument for the purposes of section 5 of the Legislative
Instruments Act 2003, as the Register will simply hold administrative
details of relevant cash dealers.
Items 12 and 13
These items amend paragraph 28(1)(a) and subsection 29(1) of the FTR Act to
extend the operation of the offences of failing to communicate information
when and as required under Parts II or III, and providing false or
misleading information under Parts II or III, to all required
communications, not just those communications to the Director of AUSTRAC.
This reflects the new provisions which require communication to a person
other than the Director. For example, the offences would apply if a cash
dealer failed to include customer information, or included false or
misleading information, with an IFTI in accordance with new subsection
17FA(1) (see item 10 of this Schedule above). These offences of failing to
communicate information when required or providing false or misleading
information are punishable by imprisonment for two years under existing
subsections 28(4) and 29(5) respectively.
Items 14 and 15
These items amend paragraph 29(3)(a) of the FTR Act to extend the operation
of the offence of providing false or misleading information to reports
required to be made under new section 15AA and to declarations required to
be made under new section 33AA. This offence of providing false or
misleading information is punishable by imprisonment for five years under
existing subsection 29(5). These amendments are intended to ensure that
the offences in relation to providing a false or misleading report or
declaration about transfers of bearer negotiable instruments are the same
as those concerning providing a false or misleading report or declaration
about currency.
Item 16
This item inserts new paragraph 29(4)(ba) into section 29 of the FTR Act
making it an offence if a person makes a statement (either orally or in
writing) or presents a document that is, to the person's knowledge, false
or misleading in a material particular and is capable of causing a cash
dealer, to include customer information relating to an IFTI, that is false
or misleading in a material particular. This offence is punishable by
imprisonment for five years under existing subsection 29(5). Customer
information in relation to IFTIs transmitted out of Australia is defined in
subsection 17FA(3) (see item 10 of this Schedule above)..
Item 17
This item amends subsection 30(1) of the FTR Act to extend the operation of
the offence of communicating incomplete information when and as required
under Part II to all required communications, not just those communications
to the Director of AUSTRAC. This reflects the new provisions which require
communication to a person other than the Director. For example, an offence
may be committed if a cash dealer deliberately does not include the full
address details of a customer in an IFTI as required under new subsection
17FA(1) (see item 10 of this Schedule above). This offence of failing to
communicate information when required is punishable by a fine of 10 penalty
units, which under section 4AA of the Crimes Act is equivalent to $1100.
Item 18
New section 33AA - Questioning and search powers in relation to bearer
negotiable instruments
Item 18 inserts new section 33AA into Part V of the FTR Act. This new
section contains the operational provisions that implement a 'disclosure
when asked' system in relation to bearer negotiable instruments as required
under FATF SR IX concerning Cash Couriers. The reporting structure in new
section 15AA inserted by item 9 of this Schedule is activated as a result
of the use of these questioning and search powers.
New subsections 33AA(1) and (2) provide that any person who is about to
leave, or who arrives in, Australia must declare whether or not they have
any bearer negotiable instruments with them and the amount payable under
each instrument and produce each instrument, if requested to do so by an
officer (defined as a police officer or a customs officer for the purposes
of this section by new subsection 33A(13)). If a person fails to declare
or produce a bearer negotiable instrument as required under new subsections
33AA(1) or (2) then that person commits an offence punishable by
imprisonment for one year under new subsection 33AA(12).
New subsection 33AA(3) provides that an officer may make a copy of a bearer
negotiable instrument that is produced by a person and that the officer
must return the instrument to the person once it is copied.
This provision does not mean that every bearer negotiable instrument that
is produced must be copied. It is intended to give an officer flexibility
to determine whether or not a copy is required under the circumstances.
For example it is envisaged that a copy could be taken where the bearer
negotiable instrument is in a foreign language and the amount payable under
the instrument is unclear. This copy could then be attached to a report
sent to the Director of AUSTRAC.
New subsection 33AA(4) provides that the search powers in new subsections
(5) and (6) only apply if an officer has asked a person questions about a
bearer negotiable instrument under new subsection (1) or (2) and the
officer has reasonable grounds to suspect that the person has made a false
or misleading declaration. The search powers are enlivened because a false
declaration in relation to a bearer negotiable instrument could be
indicative of involvement in terrorist financing, money laundering or other
criminal activity.
New subsection 33AA(5) provides that an officer may, with such assistance
as is reasonable and necessary, examine an article that a person has with
them, such as a person's luggage, to look for a bearer negotiable
instrument, if the person is about to leave or has just arrived in
Australia, or is about to board or leave, or has boarded or left, any ship
or aircraft. The subsection only applies when the officer has asked
questions under new subsection (1) or (2) and has reasonable grounds to
suspect that the person has made a false declaration. As a result of the
examination the officer may request the person to prepare a report for the
Director of AUSTRAC in accordance with new section 15AA (see item 9 of this
Schedule above), or where the person is suspected of being involved in more
serious criminal activity the person may be detained for further
investigation by the police.
New subsection 33AA(6) provides that an officer may, with such assistance
as is reasonable and necessary, search a person for the purpose of finding
out whether the person has with them a bearer negotiable instrument, if the
person is about to leave or has just arrived in Australia, or is about to
board or leave, or has boarded or left, any ship or aircraft. The
subsection only applies when the officer has asked questions under new
subsection (1) or (2), has reasonable grounds to suspect that the person
has made a false declaration and has reasonable grounds to suspect that
there may be a bearer negotiable instrument on the person or in clothing
worn by the person, in respect of which the false declaration was made. As
a result of a search under new subsection (6), an officer may request a
person to prepare a report under new section 15AA. Where a person is
suspected of being involved in more serious criminal activity they may be
detained for further investigation by the police.
New subsection 33AA(7) provides that a customs officer may only carry out a
search under new subsection (6), if there is in force a declaration under
section 219ZA of the Customs Act 1901 for that class of officer. This is
to ensure that any customs officer conducting a search is required to
comply with the procedures set out in Division 1B of Part XII of the
Customs Act 1901.
New subsection 33AA(8) provides that an officer may only search a person,
under new subsection (6), who is the same sex as the officer.
New subsection 33AA(9) provides that an officer and any person assisting
the officer may board any ship or aircraft or go onto or enter any
prescribed place, being a place prescribed in the regulations under section
33, to exercise the questioning and or search powers in new subsection (1),
(2), (5), (6), or (10). The reason for this provision is to align the
questioning and search powers in relation to physical cross border
transfers of bearer negotiable instruments with those relating to currency.
New subsection 33AA(10) provides that, in the course of an examination or
search, an officer may seize a bearer negotiable instrument in respect of
which a false declaration has been made. New subsection 33A(11) provides
that if a person produces a bearer negotiable instrument to an officer in
respect of which a false declaration has been made, the officer may seize
it.
New subsection 33A(12) provides that it is an offence to fail to declare or
produce a bearer negotiable instrument as required under new subsection (1)
or (2). This offence is punishable by imprisonment for one year.
The note to new subsection (12) indicates that under subsection 4B(2)
of the Crimes Act a court may impose a fine instead of, or in addition
to, the one year term of imprisonment.
The note to item 18 amends the heading to section 33 so that it refers to
currency. The reason for this change is to clearly set out the regime for
questioning and searching in relation to currency under section 33 as a
separate and distinct regime to that in relation to bearer negotiable
instruments set out in new section 33AA.
Items 19 and 20
These items make consequential amendments to section 33A of the FTR Act to
ensure that offences against existing section 15 and new section 15AA have
the same consequences.
The effect of the amendment in item 19 is to extend the operation of new
section 33A to enable an officer to arrest a person without a warrant where
the officer has reasonable grounds to believe that a person is guilty of an
offence under new section 15AA.
The effect of the amendment in item 20 is to extend the arrest without
warrant power under existing subsection 33A(1) to include an offence
against section 6 of the Crimes Act 1914 or section 11.1, 11.4 or 11.5 of
the Criminal Code that relates to an offence against new section 15AA of
the FTR Act. These provisions deal with extensions of criminal
responsibility such as attempt and incitement.
Item 21
New Schedule 3AA - Reportable details for purposes of section 15AA
This item inserts new Schedule 3AA to the FTR Act in relation to bearer
negotiable instruments. Schedule 3AA provides the reportable details
referred to in new subsection 15AA(6), inserted by item 9 above. The
reportable details for the purposes of new section 15AA are the equivalent
of the reportable details for the purposes of section 15, set out in
Schedule 3 to the FTR Act, and ensure that reports about currency and
reports about bearer negotiable instruments are consistent.
Proceeds of Crime Act 2002
Items 22 and 23
These items make consequential amendments to subsection 29(3) and the
definition of serious offence in section 338 of the Proceeds of Crime Act
2002 respectively, to ensure that the offences against sections 15 and 15AA
of the FTR Act have the same consequences. These provisions relate to
restraining orders that may be issued under the Proceeds of Crime Act 2002.
Surveillance Devices Act 2004
Item 24
This item makes a consequential amendment to the definition of relevant
offence in subsection 6(1) of the Surveillance Devices Act 2004, to ensure
that the offences against sections 15 and 15AA of the FTR Act have the same
consequences. This definition relates to the availability of warrants
under the Surveillance Devices Act 2004.
Schedule 10 - ASIO powers etc.
This Schedule amends the ASIO Act to:
a) strengthen ASIO's special powers warrant regime, by:
. clarifying the scope of computer access warrants;
. extending the time period for the validity of search warrants and
inspection of postal and delivery service warrants, and extending the
equivalent periods for the purpose of foreign intelligence gathering
warrants;
. allowing for the removal and retention (for a reasonable period unless
return would be prejudicial to security) of material found during
execution of a search warrant; and
. extending computer access warrants to allow entry on premises;
b) provide ASIO with enhanced access to aircraft and vessel information for
the purpose of carrying out ASIO's functions;
c) strengthen the offence for providing false or misleading information
under an ASIO questioning warrant; and
d) make it clear that obligations, prohibitions or restrictions imposed by
control orders will not be 'prescribed administrative action' for the
purposes of Part IV of the ASIO Act.
This Schedule also amends the Customs Act 1901 and the Customs
Administration Act 1985 to broaden the powers of Customs officers in
relation to security and intelligence, and the Migration Act 1958 to
clarify the power to deport non-citizens on security grounds.
Australian Security Intelligence Organisation Act 1979
Item 1
This item inserts a definition of data storage device into section 4 of the
ASIO Act, for the purposes of ASIO's special powers in relation to search
warrants and computer access warrants under sections 25 and 25A
respectively. The new definition, which is consistent with the definition
in the Criminal Code, defines a data storage device to mean a thing
containing, or designed to contain, data for use by a computer.
Sections 25 and 25A currently authorise the use of a computer 'or other
electronic equipment', although electronic equipment is not defined in the
ASIO Act. This definition will put beyond doubt that the equipment or
things that can be used to access data under sections 25 and 25A include
data storage devices (which would include, for example, compact discs and
similar things).
By framing the amendment in language that is technology neutral, this
definition is designed to cover future technological advancements, which
affords ASIO the required flexibility to conduct lawful operations in the
face of changing technologies, and resolve any possible ambiguities
surrounding what constitutes electronic equipment.
Item 2
This item inserts new section 23 into Division 2 of Part III of the ASIO
Act to provide enhanced access to aircraft and vessel information for ASIO.
This access is consistent with the new access given to the AFP under new
section 3ZQM in the Crimes Act, inserted by item 1 of Schedule 6.
New section 23 gives authorised ASIO officers and employees power to
request assistance from the operators of aircrafts or vessels, and imposes
obligations on these operators to answer questions and produce documents.
It is designed to ensure that ASIO's investigations of persons of security
concern are not hampered by airline or ship operators refusing to provide,
or refusing to provide promptly, information relevant to the investigations
(for example, information relating to their passengers, crew or voyage).
New subsection 23(1) provides that an authorised ASIO officer or employee
may, for the purposes of carrying out ASIO's functions, ask an operator of
an aircraft or vessel questions relating to the aircraft or vessel, or its
cargo, crew, passengers, stores or voyage, or request the operator to
produce documents relating to the aircraft or vessel, or its cargo, crew,
passengers, stores or voyage, that are in the possession or under the
control of the operator.
New subsection 23(2) provides that a person who is asked a question or
requested to produce a document under new subsection (1) must answer the
question or produce the document as soon as practicable.
New subsection 23(3) provides that a person commits an offence if the
person is an operator of an aircraft or vessel who is asked a question or
requested to produce a document under new subsection (1) and fails to
answer the question or produce the document. An offence against this new
subsection is punishable by a maximum fine of 60 penalty units, which under
section 4AA of the Crimes Act is equivalent to $6600.
New subsection 23(4) provides that strict liability applies to the offence
under new subsection (3). This means that the prosecution does not need to
prove fault for this offence, but that the defence of mistake of fact under
section 9.2 of the Criminal Code is available.
New subsection 23(5) creates a defence to the offence under new subsection
(3) if the person charged had a reasonable excuse for failing to answer the
question or produce the document. What is regarded as a reasonable excuse
will depend not only on the circumstances of the individual cases but also
the purpose of the provision to which the defence is an exception.
New subsection 23(6) provides that the Director-General, or a senior
officer of the Organisation authorised by the Director-General for the
purposes of this subsection, may authorise, in writing, an officer,
employee or class of officers or employees of ASIO for the purposes of this
section. This authorisation provision is consistent with the current
regime for authorising persons to exercise authority under warrants in
section 24 of the ASIO Act. New subsection 23(7) defines persons so
authorised as authorised officers and employees for the purposes of this
section.
New subsection 23(7) also defines operator and senior officer of the
Organisation for the purposes of this section, to have the same meanings as
in section 4 of the Customs Act 1901 and section 24 of the ASIO Act
respectively.
Items 3 and 4
These items amend section 25 of the ASIO Act to clarify the period of time
for which material seized under a search warrant may be retained. It
covers material (any record or thing) seized during search of premises
under warrant or during ordinary or frisk searches of persons at or near
the subject premises when the search warrant is executed.
The current situation is that such material may be retained for such time
as is reasonable for the purposes set out in paragraphs 25(4)(d) and
(4A)(c), being to inspect or examine, and in the case of a record, make a
copy or transcript. Item 3 removes the phrase 'for such time as is
reasonable' from paragraphs 25(4)(d) and (4A)(c).
Item 4 inserts new subsection 25(4C) which provides that the material may
only be retained for a reasonable time for those purposes listed above, but
it allows ASIO to continue to retain the material if it is assessed that
the return of the material would be prejudicial to security.
Items 5 to 11
These items make a number of amendments to section 25 of the ASIO Act as a
consequence of the new definition of data storage device inserted by item
1. This ensures that these devices are an extra thing (additional to a
computer or other electronic equipment) that can be used on premises that
are the subject of a search warrant for the purpose of obtaining access to
data relevant to the security matter. These amendments also ensure that a
computer, data storage device or other electronic equipment need not only
be found on a person's premises, but could also be brought to the premises
for the purpose of obtaining access to data relevant to the security
matter.
Item 12
This item amends subsection 25(10) of the ASIO Act to extend the maximum
period for which a search warrant can be in force from 28 days to 90 days.
This will reduce the need for fresh warrants to be sought in unavoidable
situations where it has not been practicable or possible to execute the
warrant within 28 days. The Minister will continue to be able to revoke
the warrant before the period has expired and the Director-General will
continue to be able to cause action under the warrant to be discontinued
under section 30.
Item 13
This item inserts new paragraph (4)(aa) into section 25A of the ASIO Act to
ensure that the entering of specified premises may be authorised by a
computer access warrant.
Section 25A currently enables computer access warrants to authorise certain
activity relating to computers, but it does not enable the warrants to
authorise entry on premises in order to carry out these activities. If
entry onto premises is needed, separate (search) warrants are required to
be obtained for this purpose. The new paragraph will mean that separate
search warrants will no longer be required, which will make section 25A
consistent with section 26, which authorises the entry onto premises for
the purposes of installing a listening device.
The new paragraph will enable the Minister to authorise entry by ASIO onto
identified premises for the purposes of doing the things permitted under a
computer access warrant in subsection 25A(4). The only new authorisation
is to allow access to the premises for the purpose of executing a computer
access warrant. Any of the other activities undertaken under a search
warrant (in section 25) would still need authorisation by way of a separate
search warrant.
Item 14
This item inserts new subparagraph (a)(iv) into subsection 25A(4) of the
ASIO Act to ensure that a computer access warrant issued under section 25A
may authorise the use of a data storage device for the purpose of obtaining
access to data that is relevant to the security matter and that is stored
in the target computer.
Item 15
This item inserts new subsection (5A) into section 25A of the ASIO Act as a
consequence of the power for a computer access warrant to authorise entry
onto premises inserted by item 13. The new subsection requires the warrant
to authorise the use of any necessary and reasonable force and specify the
time at which entry may occur, which are identical to measures applying to
search warrants under subsection 25(7).
Items 16 and 17
These items amend subsections 27(4) and 27AA(9) of the ASIO Act to extend
the maximum period for which inspection of postal articles warrants and
inspection of delivery service articles warrants respectively can be in
force, from 90 days to six months. The extension of these periods to six
months will harmonise these warrant periods with the time periods of other
special power warrants, such as those for listening devices and
telecommunications interception warrants. The Minister will continue to be
able to revoke the warrants at any time before the specified period has
expired and the Director-General will continue to be able to cause action
under the warrant to be discontinued under section 30.
Items 18 to 20
These items amend paragraphs 27(A)(3)(a), (b) and (c) of the ASIO Act to
extend the maximum time periods for foreign intelligence gathering warrants
so that the periods are consistent with the general warrant period applying
to the relevant activity.
Item 18 ensures that the foreign intelligence gathering search warrant
period reflects the general search warrant period, extended by item 12 from
28 days to 90 days. Items 19 and 20 ensure that the foreign intelligence
gathering inspection of postal and delivery service articles warrant period
reflects the general inspection of postal and delivery service articles
warrant period, extended by items 16 and 17 from 90 days to six months.
Items 21 and 22
These items amend section 34G of the ASIO Act to align the offence of
giving false or misleading information during questioning under a warrant
issued under Division 3 of Part III of the ASIO Act with the formulation
used in similar offences in the Criminal Code.
The current formulation of the offence provision in subsection 34G(5)
requires the prosecution to prove that the defendant made a statement that
is 'to the person's knowledge false or misleading in a material
particular'. These amendments will put beyond doubt that the prosecution
is not required to prove that the defendant knew a false or misleading
statement was false or misleading in a material particular, but materiality
will still be taken into account.
Item 21 ensures that the requirement for the statement to be false or
misleading in a material particular is no longer an element of the offence,
while item 22 ensures that the offence does not apply if the statement is
not false or misleading in a material particular. The effect of this, as
indicated by the note to new subsection (5A), is that a defendant will bear
the evidential burden in relation to the matter of whether the statement
was false or misleading in a material particular, under subsection 13.3(3)
of the Criminal Code.
Items 23 and 24
These items amend section 34N of the ASIO Act to clarify the period of time
for which material seized under a questioning, or questioning and
detention, warrant or through an ordinary or strip search of a detained
person under Division 3 of Part III of the ASIO Act, may be retained.
These amendments are consistent with the clarification of the period of
time for which material seized under a search warrant may be retained,
under items 3 and 4 of this Schedule.
The current situation is that such material may be retained for such time
as is reasonable. Item 23 removes this phrase 'for such time as is
reasonable' from paragraphs 34N(1)(a) and (c).
Item 24 inserts new subsection 34N(3) which provides that the material may
only be retained for a reasonable time, but it allows ASIO to continue to
retain the material if it is assessed that the return of the material would
be prejudicial to security.
Item 25
This item is an application provision. Subitem 23(1) provides that all the
amendments relating to warrants, being items 1, 3 to 20, 23 and 24, apply
to warrants issued after this item commences.
Subitem 23(2) provides that the amendments made to the offence of providing
a false or misleading statement , being items 21 and 22, apply to
statements made after this item commences.
These are standard application clauses which ensure that these new
provisions do not have any retrospective operation.
Items 26 to 28
These items amend section 35 of the ASIO Act to put beyond doubt that an
obligation, prohibition or restriction imposed on a person by a control
order under proposed new Division 104 of the Criminal Code (inserted by
Schedule 4 to this Bill) is not prescribed administrative action for the
purpose of Part IV of the ASIO Act. This purpose is achieved by item 27
inserting a note to the definitions in subsection 35(1) and item 28
inserting a new subsection 35(2), which operates as an avoidance of doubt
provision.
These amendments mean that ASIO would not pass relevant information to the
AFP for the purpose of the control order provisions in the form of security
assessments under Part IV of that Act. However, subject to the
requirements of the Act, the information could be communicated under other
provisions of the Act.
Customs Act 1901
Item 29
This item amends section 186A of the Customs Act 1901 by broadening the
purposes for which Customs officers can copy documents to include a
'security or intelligence' purpose.
Currently, Customs officers have general powers of examination of goods
subject to Customs control under section 186 of the Customs Act 1901.
Section 186A provides Customs officers with the power to make copies of,
and take extracts from, documents in certain circumstances.
Currently this power may only be exercised where the officer is satisfied
that information contained in the document is relevant to the importation
or exportation of prohibited goods, or certain criminal offences. When
examining goods of arriving and departing passengers under section 186,
Customs officers from time to time locate documents, written notes,
diaries, electronic media or other goods which, based on the officer's
assessment of the passenger, or other information available to them at the
time of the examination, may relate to matters of security or intelligence.
Currently these documents cannot be copied, as they do not relate to the
import or export of prohibited goods or the commission or attempted
commission of certain offences under the Customs Act 1901 or other
prescribed Acts.
The amendment will ensure that information that an officer is satisfied may
be of significant national interest, being information that is relevant to
the performance of ASIO's functions under section 17 of the ASIO Act, to
the performance of functions under section 6 of the Intelligence Services
Act 2001, or to security within the meaning of security in section 4 of the
ASIO Act, may be copied.
Customs Administration Act 1985
Item 30
This item amends section 16 of the Customs Administration Act 1985 to
broaden Customs powers for 'security or intelligence' purposes.
Currently, section 16 permits the CEO of Customs, a delegate or authorised
person to disclose protected information to certain persons. In
particular, subsection 16(3A) permits the CEO to authorise disclosure of
certain information to Commonwealth agencies for the purposes of those
agencies' functions subject to conditions on the use of the information.
Under this provision, the security and intelligence agencies may be
provided with protected information. However, subsection 16(8) restricts
personal information from being passed on subject to certain permissible
purposes set out in subsection 16(9). Two relevant permissible purposes
are for the administration or enforcement of a law relating to criminal
law, or a law imposing a pecuniary penalty or for the forfeiture of
property.
From time to time Customs may obtain information that it believes is
relevant to agencies on security or intelligence grounds, but which does
not relate to a criminal or pecuniary offence. It is considered
appropriate that the permissible purposes also include security and
intelligence purposes, in order to permit Customs officers to lawfully
disclose such information to relevant agencies.
This item inserts new paragraphs 16(9)(ia) and (ib) into subsection 16(9)
to include as permissible purposes those purposes relating to the
performance of ASIO's functions under section 17 of the ASIO Act, and the
performance of functions under section 6 of the Intelligence Services Act
2001.
Migration Act 1958
Items 31 and 32
These items amend section 202 of the Migration Act 1958 which provides for
deportation from Australia of non-citizens. Section 202 currently enables
the Minister to order the deportation of a non-citizen where ASIO furnishes
an adverse security assessment and the person 'constitutes, or has
constituted, a threat to the security of the Commonwealth, of a State or of
an internal or external Territory'.
Item 31 substitutes the word 'security' for the phrase 'the security of the
Commonwealth, of a State or of an internal or external Territory' in
paragraph 202(1)(a), and item 32 inserts a definition of security for the
purposes of this section in subsection 202(6) which has the same meaning as
in section 4 of the ASIO Act.
This reflects the fact that ASIO conducts security assessments on
'security' grounds. 'Security' is defined in section 4 of the ASIO Act to
mean the protection of the Commonwealth, the States and the Territories
from espionage, sabotage, politically motivated violence, promotion of
communal violence, attacks on Australia's defence system, and acts of
foreign interference. It also includes the carrying out of Australia's
responsibilities to foreign countries in relation to any of these matters.
The scope for an assessment as a threat to security, under this definition,
is not therefore restricted to the security of the Commonwealth, of a State
or of an internal or external Territory, but may also extend to the
carrying out of Australia's responsibilities to foreign countries in
security-related matters.
The amendments are part of broader efforts to similarly align the meaning
of 'security' as used in provisions for other related purposes (including
citizenship applications, and visa refusals and cancellations on security
grounds) with the definition of 'security' in the ASIO Act.
