TERRORISM LEGISLATION AMENDMENT (WARRANTS) BILL 2005
This is a Bill, not an Act. For current law, see the Acts databases.
TERRORISM LEGISLATION AMENDMENT (WARRANTS) BILL 2005
New South Wales
Terrorism Legislation Amendment
(Warrants) Bill 2005
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Amendment of Terrorism (Police Powers) Act 2002 No 115 2
4 Amendment of Listening Devices Act 1984 No 69 2
5 Amendment of Crimes Act 1900 No 40 2
6 Repeal of amendment of Crimes Act 1900 No 40 and related
amendments 2
Schedule 1 Principal amendments to Terrorism (Police Powers) Act 2002 3
Schedule 2 Consequential amendments to Terrorism (Police Powers)
Act 2002 24
Schedule 3 Amendment of Listening Devices Act 1984 28
Schedule 4 Amendment of Crimes Act 1900 29
I certify that this PUBLIC BILL, which originated in the LEGISLATIVE ASSEMBLY,
has finally passed the LEGISLATIVE COUNCIL and the LEGISLATIVE ASSEMBLY of
NEW SOUTH WALES.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2005
New South Wales
Terrorism Legislation Amendment
(Warrants) Bill 2005
Act No , 2005
An Act to amend the Terrorism (Police Powers) Act 2002 to make provision with
respect to covert warrants in connection with terrorist acts; to amend the Listening
Devices Act 1984 with respect to the duration of warrants for terrorism offences; to
amend the Crimes Act 1900 to create the offence of being a member of a terrorist
organisation; and for other purposes.
I have examined this Bill, and find it to correspond in all respects with the Bill
as finally passed by both Houses.
Chairman of Committees of the Legislative Assembly.
Clause 1 Terrorism Legislation Amendment (Warrants) Bill 2005
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Terrorism Legislation Amendment (Warrants) Act 2005.
2 Commencement
(1) This Act commences on a day or days to be appointed by proclamation,
except as provided by subsection (2).
(2) Section 6 commences on the second anniversary of the commencement
of section 5.
3 Amendment of Terrorism (Police Powers) Act 2002 No 115
The Terrorism (Police Powers) Act 2002 is amended as set out in
Schedules 1 and 2.
4 Amendment of Listening Devices Act 1984 No 69
The Listening Devices Act 1984 is amended as set out in Schedule 3.
5 Amendment of Crimes Act 1900 No 40
The Crimes Act 1900 is amended as set out in Schedule 4.
6 Repeal of amendment of Crimes Act 1900 No 40 and related amendments
(1) The Terrorism (Police Powers) Act 2002 is amended by omitting
section 27A (2) of that Act, as inserted by section 3 and Schedule 1 to
this Act.
(2) The Crimes Act 1900 is amended by omitting Part 6B of that Act, as
inserted by section 5 and Schedule 4 to this Act.
Page 2
Terrorism Legislation Amendment (Warrants) Bill 2005
Principal amendments to Terrorism (Police Powers) Act 2002 Schedule 1
Schedule 1 Principal amendments to Terrorism
(Police Powers) Act 2002
(Section 3)
[1] Part 3
Insert after Part 2 (as inserted by Schedule 2 [5]):
Part 3 Covert search warrants
Division 1 Preliminary
27A Definitions
(1) In this Part:
Crime Commissioner means the Commissioner for the New
South Wales Crime Commission.
eligible Judge--see section 27B.
eligible police officer means a police officer who is employed
within a group of staff of NSW Police who are designated by the
Commissioner of Police as the terrorism investigation group for
NSW Police.
eligible staff member of the Crime Commission means a person
who is employed within a group of staff of the New South Wales
Crime Commission that is designated by the Crime
Commissioner as the terrorism investigation group for the Crime
Commission.
occupier's notice means an occupier's notice referred to in
section 27U or 27V.
subject premises, in relation to a warrant or an application for a
warrant, means premises the subject of the warrant or the
application (as the case may be).
telephone warrant means a warrant referred to in section 27I.
(2) In this Part, terrorist act includes an offence against section 310J
of the Crimes Act 1900 (Membership of terrorist organisation). In
that case, a reference in this Part:
(a) to a terrorist act that has been, is being, or is likely to be,
committed is a reference to an offence against that section
that is being committed, and
(b) to responding to or preventing a terrorist act is a reference
to obtaining or providing evidence of the commission of an
offence against that section.
Page 3
Terrorism Legislation Amendment (Warrants) Bill 2005
Schedule 1 Principal amendments to Terrorism (Police Powers) Act 2002
(3) For the purpose of this Part, a reference to the search of premises
includes a reference to the search for information that may be
derived from, or anything on, premises.
27B Eligible Judges
(1) In this Part:
eligible Judge means a Judge in relation to whom a consent under
subsection (2) and a declaration under subsection (3) are in force.
(2) A Judge of the Supreme Court may, by instrument in writing,
consent to be nominated by the Attorney General under
subsection (3).
(3) The Attorney General may, by instrument in writing, declare
Judges in relation to whom consents are in force under subsection
(2) to be eligible Judges for the purposes of this Part.
(4) An eligible Judge has, in relation to the exercise of a function
conferred on an eligible Judge by this Part, the same protection
and immunity as a Judge of the Supreme Court has in relation to
proceedings in the Supreme Court.
(5) A Judge who has given consent under this section may, by
instrument in writing, revoke the consent.
(6) The Attorney General may, by instrument in writing, amend or
revoke a declaration under this section.
Division 2 Authorisation to apply for covert search
warrant
27C Authorisation to apply for covert search warrant
An authorisation to apply for a covert search warrant issued
under this Part may be given in accordance with this Division if
the person giving the authorisation suspects or believes on
reasonable grounds:
(a) that a terrorist act has been, is being, or is likely to be,
committed, and
(b) that the entry to and search of premises will substantially
assist in responding to or preventing the terrorist act, and
(c) that it is necessary for the entry and search of those
premises to be conducted without the knowledge of any
occupier of the premises.
Page 4
Terrorism Legislation Amendment (Warrants) Bill 2005
Principal amendments to Terrorism (Police Powers) Act 2002 Schedule 1
27D Who may be authorised to apply for a covert search warrant
(1) The Commissioner of Police may authorise an eligible police
officer to apply for a covert search warrant issued under this Part.
(2) The Crime Commissioner may authorise an eligible staff member
of the Crime Commission to apply for a covert search warrant
under this Part.
27E Delegation of Commissioner of Police's power to give
authorisation
(1) Except as provided by this section, the power of the
Commissioner of Police to give an authorisation under this Part
may not be delegated to any person.
(2) The Commissioner of Police may delegate to any of the
following persons who are eligible police officers his or her
power to give an authorisation:
(a) an Assistant Commissioner holding a position that is
prescribed by the regulations,
(b) a person holding a position of or above the rank of
superintendent that is prescribed by the regulations.
(3) No more than 2 persons may hold delegations under this section
at any one time.
(4) This section has effect despite any other Act or law to the
contrary.
27F Delegation of Crime Commissioner's power to give authorisation
(1) Except as provided by this section, the power of the Crime
Commissioner to give an authorisation under this Part may not be
delegated to any person.
(2) The Crime Commissioner may delegate to an eligible staff
member of the Crime Commission who holds a position
prescribed by the regulations his or her power to give an
authorisation.
(3) No more than 1 person may hold a delegation under this section
at any one time.
(4) This section has effect despite any other Act or law to the
contrary.
Page 5
Terrorism Legislation Amendment (Warrants) Bill 2005
Schedule 1 Principal amendments to Terrorism (Police Powers) Act 2002
Division 3 Application for, and issue of, covert search
warrant
27G Power to apply for covert search warrant
An eligible police officer, or an eligible staff member of the
Crime Commission, who is given an authorisation under
Division 2 may apply to an eligible Judge for a covert search
warrant in respect of any premises if the officer or staff member
suspects or believes on reasonable grounds:
(a) that a terrorist act has been, is being, or is likely to be,
committed, and
(b) that the entry to and search of the premises will
substantially assist in responding to or preventing the
terrorist act, and
(c) that it is necessary for the entry and search of those
premises to be conducted without the knowledge of any
occupier of the premises.
27H Application for warrant in person
(1) An application for a covert search warrant must be in writing and
must be made by the applicant in person.
(2) An eligible Judge must not issue a covert search warrant unless
the information given by the applicant in or in connection with
the application is verified before the Judge on oath or affirmation
or by affidavit.
(3) An eligible Judge may administer an oath or affirmation or take
an affidavit for the purposes of an application for a covert search
warrant.
(4) This section does not apply to a telephone warrant.
27I Telephone warrant
(1) An eligible police officer, or an eligible staff member of the
Crime Commission, who is given an authorisation under
Division 2 may apply by telephone for a covert search warrant.
(2) An eligible Judge must not issue a covert search warrant on an
application made by telephone unless the Judge is satisfied that
the warrant is required urgently and that it is not practicable for
the application to be made in person.
(3) An application must be made by facsimile if the facilities to do so
are readily available for that purpose.
Page 6
Terrorism Legislation Amendment (Warrants) Bill 2005
Principal amendments to Terrorism (Police Powers) Act 2002 Schedule 1
(4) If it is not practicable for an application for a covert search
warrant to be made by telephone directly to an eligible Judge, the
application may be transmitted to the Judge by another person on
behalf of the applicant.
(5) An eligible Judge who issues a covert search warrant on an
application made by telephone must:
(a) complete and sign the warrant, and
(b) provide the warrant to the person who made the
application or inform that person of the terms of the
warrant and of the date when it was signed.
(6) If a covert search warrant is issued on an application made by
telephone and the applicant was not provided with the warrant,
the applicant must:
(a) complete a form of warrant in the terms indicated by the
eligible Judge under subsection (5), and
(b) write on it the name of that Judge and the date when the
warrant was signed, and
(c) provide the warrant to that Judge within 2 business days of
the issue of the warrant.
(7) A form of covert search warrant so completed is taken to be a
warrant issued in accordance with this Division.
(8) A covert search warrant is to be provided by an eligible Judge by
transmitting it by facsimile if the facilities to do so are readily
available, and the copy produced by that transmission is taken to
be the original warrant.
(9) In this section:
facsimile means facsimile transmission, the internet or any other
means of electronic transmission of information in a form from
which written material is capable of being reproduced with or
without the aid of any other device or article.
telephone includes any communication device.
27J Information in application for warrant
(1) An eligible Judge must not issue a covert search warrant unless
the application for the warrant includes the following
information:
(a) the name of the applicant and details of the authorisation
given to the applicant under Division 2,
(b) the address or other description of the subject premises,
Page 7
Terrorism Legislation Amendment (Warrants) Bill 2005
Schedule 1 Principal amendments to Terrorism (Police Powers) Act 2002
(c) particulars of the grounds on which the application is
based,
(d) the name of the following persons:
(i) any person believed to be knowingly concerned in
the commission of the terrorist act in respect of
which the application is made,
(ii) if no such person is an occupier of the subject
premises--any occupier (if known) of those
premises,
(e) if it is proposed that premises adjoining or providing
access to the subject premises be entered for the purposes
of entering the subject premises--the address or other
description of the premises that adjoin or provide such
access and particulars of the grounds on which entry to
those premises is required,
(f) the powers that are proposed to be exercised on entry to the
subject premises,
(g) a description of the kinds of things that are proposed to be
searched for, seized, placed in substitution for a seized
thing, copied, photographed, recorded, operated, printed or
tested,
(h) if a previous application for the same warrant was
refused--details of the refusal and any additional
information provided as required by section 27M,
(i) details of any covert search warrant that has previously
been issued in respect of the subject premises,
(j) any other information required by the regulations.
(2) The applicant must provide (either orally or in writing) such
further information as the eligible Judge requires concerning the
grounds on which the warrant is being sought.
27K Determining application for covert search warrant
(1) An eligible Judge to whom an application for a covert search
warrant is made may, if satisfied that there are reasonable
grounds for doing so, issue a covert search warrant.
(2) An eligible Judge, when determining whether there are
reasonable grounds to issue a covert search warrant, is to consider
(but is not limited to considering) the following matters:
(a) the reliability of the information on which the application
is based, including the nature of the source of the
information,
Page 8
Terrorism Legislation Amendment (Warrants) Bill 2005
Principal amendments to Terrorism (Police Powers) Act 2002 Schedule 1
(b) whether there is a connection between the terrorist act in
respect of which the application has been made and the
kinds of things that are proposed to be searched for, seized,
placed in substitution for a seized thing, copied,
photographed, recorded, operated, printed or tested,
(c) the nature and gravity of the terrorist act,
(d) the extent to which the exercise of powers under the
warrant would assist in the prevention of, or response to,
the terrorist act,
(e) alternative means of obtaining the information sought to be
obtained,
(f) the extent to which the privacy of a person who is not
believed to be knowingly concerned in the commission of
the terrorist act is likely to be affected if the warrant is
issued,
(g) if it is proposed that premises adjoining or providing
access to the subject premises be entered for the purposes
of entering the subject premises:
(i) whether this is reasonably necessary in order to
enable access to the subject premises, or
(ii) whether this is reasonably necessary in order to
avoid compromising the investigation of the
terrorist act,
(h) whether any conditions should be imposed by the Judge in
relation to the execution of the warrant.
27L Record of determination by eligible Judge
(1) An eligible Judge who determines an application for a covert
search warrant must cause a record to be made of all relevant
particulars of the grounds the eligible Judge has relied on to
justify the issue of the warrant or the refusal to issue the warrant
(as the case may be).
(2) The regulations may make provision for or with respect to:
(a) the keeping of records in connection with the issue and
execution of covert search warrants, and
(b) the inspection of any such records, and
(c) any other matter in connection with any such records.
(3) Any matter that might disclose the name or residential address of
a person must not be recorded pursuant to this section if the
eligible Judge is satisfied that to do so might jeopardise the safety
of any person.
Page 9
Terrorism Legislation Amendment (Warrants) Bill 2005
Schedule 1 Principal amendments to Terrorism (Police Powers) Act 2002
27M Further application for warrant after refusal
If an application by a person for a covert search warrant is refused
by an eligible Judge, that person (or any other person who is
aware of the application) may not make a further application for
the same warrant to that or any other eligible Judge unless the
further application provides additional information that justifies
the making of the further application.
27N Contents of covert search warrant
A covert search warrant is to specify the following matters:
(a) the name of the person who applied for the warrant,
(b) the address or other description of the subject premises,
(c) the name of the following persons:
(i) any person believed to be knowingly concerned in
the commission of the terrorist act in respect of
which the warrant is issued,
(ii) if no such person is an occupier of the subject
premises--any occupier (if known) of those
premises,
(d) a description of the kinds of things that may be searched
for, seized, placed in substitution for a seized thing,
copied, photographed, recorded, operated, printed or
tested,
(e) the date on which the warrant is issued,
(f) the date on which the warrant expires (being a date that is
not more than 30 days from the date on which the warrant
is issued),
(g) any conditions imposed in relation to the execution of the
warrant,
(h) any other matter required by the regulations.
Division 4 Execution of covert search warrant and
provisions applying after warrant executed
27O Powers conferred by covert search warrant
(1) A covert search warrant authorises an eligible person:
(a) to enter, without any occupier's knowledge, the subject
premises, and
(b) to impersonate another person for the purposes of
executing the warrant, and
Page 10
Terrorism Legislation Amendment (Warrants) Bill 2005
Principal amendments to Terrorism (Police Powers) Act 2002 Schedule 1
(c) to use such force as is reasonably necessary for the
purposes of entering the subject premises, and
(d) if the warrant authorises entry to premises adjoining or
providing access to the subject premises--to enter
premises adjoining or providing access to the subject
premises, using such force as is reasonably necessary, for
the purposes of entering the subject premises, and
(e) to search the subject premises for any kind of thing
described in the warrant, and
(f) to break open any receptacle in or on the subject premises
for the purposes of that search if it is reasonably necessary
to do so, and
(g) if the warrant authorises the seizure of a kind of thing--to
seize and detain a thing of that kind and any relevant thing
that the person finds in the course of executing the warrant,
and
(h) to seize and detain any other thing that the person finds in
the course of executing the warrant and that is connected
with a serious indictable offence, and
(i) if the warrant authorises the placing of a kind of thing in
substitution for a seized thing--to place a thing of that kind
on the subject premises in substitution for a thing seized
under paragraph (g), and
(j) if the warrant authorises the copying, photographing or
recording of a kind of thing--to copy, photograph or
otherwise record a thing of that kind and any relevant thing
that the person finds in the course of executing the warrant,
and
(k) if the warrant authorises the operation of a kind of
electronic equipment:
(i) to operate any electronic equipment of that kind and
any relevant electronic equipment that the person
finds in the course of executing the warrant, and
(ii) to print, copy or otherwise record from that
equipment information that is of a kind that the
warrant authorises to be printed, copied or recorded
and any relevant information that the person finds in
the course of executing the warrant, and
(l) if the warrant authorises the testing of a kind of thing--to
test a thing of that kind and any relevant thing that the
person finds in the course of executing the warrant.
Page 11
Terrorism Legislation Amendment (Warrants) Bill 2005
Schedule 1 Principal amendments to Terrorism (Police Powers) Act 2002
(2) A reference in this section to an eligible person, in relation to a
warrant, is a reference to:
(a) an eligible police officer if the applicant for the warrant
was an eligible police officer, or
(b) an eligible staff member of the Crime Commission if the
applicant for the warrant was an eligible staff member of
the Crime Commission.
(3) A reference in this section to a relevant thing (including
electronic equipment and information) found by an eligible
person is a reference to a thing that the person has reasonable
grounds to suspect or believe will substantially assist in
responding to or preventing a terrorist act.
(4) For the purposes of this section, a thing is connected with a
serious indictable offence only if it is:
(a) a thing with respect to which there are reasonable grounds
for suspecting or believing the offence has been, is being,
or will be committed, or
(b) a thing that there are reasonable grounds for suspecting or
believing will provide evidence of the commission or
intended commission of the offence, or
(c) a thing that there are reasonable grounds for suspecting or
believing has been, is being, or is intended to be used, in or
in connection with the offence.
27P Use of assistants to execute warrant
A person who is authorised under section 27O to execute a
warrant may do so with the aid of such assistants as the person
considers necessary.
27Q Expiry of covert search warrant
Subject to section 27R, a covert search warrant ceases to have
effect:
(a) on the expiry date specified in the warrant, or
(b) if it is withdrawn by the eligible Judge who issued the
warrant--when it is withdrawn, or
(c) when it is executed,
whichever occurs first.
Page 12
Terrorism Legislation Amendment (Warrants) Bill 2005
Principal amendments to Terrorism (Police Powers) Act 2002 Schedule 1
27R Return or retrieval of a thing seized or placed
(1) A covert search warrant may authorise the return of a thing seized
under section 27O (1) (g), or the retrieval of a thing placed under
section 27O (1) (i), if the warrant expressly authorises such a
return or retrieval.
(2) If the warrant authorises the return or retrieval of a thing, the
subject premises may be re-entered by a person authorised under
section 27O to execute the warrant, but only for the purpose of
returning or retrieving the thing (as the case may be) and any such
re-entry must occur within 7 days of the first entry under the
warrant (or such longer period as is allowed, prior to the
expiration of the 7-day period, by an eligible Judge).
(3) A person authorised to re-enter premises and return or retrieve a
thing under this section may do so with the aid of such assistants
as the person considers necessary.
27S Report to eligible Judge on execution of warrant
(1) A person who executes a covert search warrant must provide a
report in writing to the eligible Judge who issued the warrant:
(a) stating the address or other description of the subject
premises, and
(b) stating whether or not the warrant was executed, and
(c) if the warrant was executed:
(i) stating the date on which the warrant was executed,
and
(ii) stating the name of any person who executed the
warrant, and
(iii) stating the name of any police officer, staff member
of the New South Wales Crime Commission or
intelligence gathering officer who assisted in the
execution of the warrant and the nature of the
assistance provided, and
(iv) stating the name of any person believed to be
knowingly concerned in the commission of the
terrorist act in respect of which the warrant was
executed and, if no such person is an occupier of the
premises, any occupier (if known) of the premises at
which the warrant was executed, and
(v) stating the powers that were exercised under the
warrant, and
Page 13
Terrorism Legislation Amendment (Warrants) Bill 2005
Schedule 1 Principal amendments to Terrorism (Police Powers) Act 2002
(vi) setting out briefly the result of the execution of the
warrant (including a brief description of anything
seized, placed in substitution for a seized thing,
copied, photographed, recorded, operated, printed
or tested), and
(vii) if a thing was found in the course of executing the
warrant and, under section 27O, that thing was (but
was not of a kind expressly authorised by the
warrant to be) copied, photographed, recorded,
operated, printed or tested--specifying particulars
of the grounds on which the thing was believed to be
a relevant thing or connected with a serious
indictable offence (as the case may be),
(viii) if a thing was tested or was seized for the purposes
of testing--including a description of the thing and
the type of information obtained (or proposed to be
obtained) by testing, and
(ix) stating whether or not the execution of the warrant
assisted in the prevention of, or response to, the
terrorist act in respect of which the warrant was
executed and, if so, how it assisted, and
(x) stating whether or not the execution of the warrant
assisted in the prevention of, or response to, any
other terrorist act or any serious indictable offence
and, if so, how it assisted, and
(d) if the warrant was not executed--setting out briefly the
reasons why the warrant was not executed, and
(e) containing such other particulars as may be prescribed by
the regulations.
(2) The report must be provided:
(a) if the warrant was executed--within 10 days after it was
executed, or
(b) if the warrant was not executed--within 10 days after:
(i) the expiry date specified in the warrant, or
(ii) the date the warrant was withdrawn by the eligible
Judge who issued the warrant.
(3) If premises are entered for the purposes of returning or retrieving
a thing under section 27R, a report must also be provided in
writing to the eligible Judge who issued the warrant:
(a) stating the address or other description of the premises, and
(b) stating the date on which the premises were re-entered, and
Page 14
Terrorism Legislation Amendment (Warrants) Bill 2005
Principal amendments to Terrorism (Police Powers) Act 2002 Schedule 1
(c) stating the name of any person who entered the premises
for the purposes of the return or retrieval, and
(d) stating the name of any other police officer, staff member
of the New South Wales Crime Commission or
intelligence gathering officer who assisted in the re-entry
of the premises or the return or retrieval of the thing and
the nature of any assistance provided, and
(e) setting out a brief description of the thing, and
(f) if the thing was not returned or retrieved--setting out the
reasons why the thing was not returned or retrieved, and
(g) containing such other particulars as may be prescribed by
the regulations.
(4) The report is to be provided within 10 days after the entry to the
premises for the purposes of retrieving or returning the thing
under section 27R.
(5) The Commissioner of Police or the Crime Commissioner is to
ensure that a copy of any report provided under this section is
given to the Attorney General.
(6) In this section:
intelligence gathering officer means a person employed by or in
the Australian Security Intelligence Organisation or any other
intelligence gathering agency prescribed for the purposes of this
definition.
police officer means a member of:
(a) NSW Police, or
(b) the Australian Federal Police, or
(c) a police force or police service (however described) of
another State, a Territory or another country.
27T Defects in covert search warrants
A covert search warrant is not invalidated by any defect, other
than a defect that affects the substance of the warrant in a material
particular.
27U Notice to occupiers of execution of covert search warrant
(1) A person who executes a covert search warrant is to cause an
occupier's notice to be prepared under this section.
(2) The occupier's notice:
(a) is to specify the name of the person who applied for the
warrant, and
Page 15
Terrorism Legislation Amendment (Warrants) Bill 2005
Schedule 1 Principal amendments to Terrorism (Police Powers) Act 2002
(b) is to specify the name of the eligible Judge who issued the
warrant, and
(c) is to specify the date when the warrant was issued, and
(d) is to specify the date when the warrant was executed, and
(e) is to specify the address or other description of the subject
premises, and
(f) is to specify the number of police officers, staff members
of the New South Wales Crime Commission or
intelligence gathering officers who entered the subject
premises for the purposes of executing, or assisting in the
execution of, the warrant, and
(g) is to contain a summary of the nature of the warrant
(including the grounds on which a covert search warrant
may be issued) and the powers conferred and exercised
under the warrant, and
(h) is to describe any thing seized or placed in substitution for
a seized thing, and
(i) is to describe any thing returned or retrieved under section
27R and the date on which the thing was returned or
retrieved, and
(j) if the occupier was not, at the time that the warrant was
executed, believed to be knowingly concerned in the
commission of the terrorist act in respect of which the
warrant was executed--is to state this, and
(k) is to specify or contain any other matters required by the
regulations.
(3) Within 6 months of executing the covert search warrant, the
person who executed the warrant is to provide the occupier's
notice to the eligible Judge who issued the warrant for that
Judge's approval.
(4) The person must provide such further information (either orally
or in writing) as the eligible Judge requires for the purposes of
assisting the Judge in determining whether to approve the
occupier's notice.
(5) As soon as practicable after the eligible Judge approves the
occupier's notice, the person who executed the warrant is to
cause the notice to be given to:
(a) any person who, at the time the warrant was executed, was
believed to be knowingly concerned in the commission of
the terrorist act in respect of which the warrant was
executed, and
Page 16
Terrorism Legislation Amendment (Warrants) Bill 2005
Principal amendments to Terrorism (Police Powers) Act 2002 Schedule 1
(b) if no such person was an occupier of the subject premises
when the warrant was executed--a person of or above the
age of 18 years known to have occupied the premises at the
time the warrant was executed.
(6) If no such person is known, or the person's whereabouts are
unknown to the person who executed the warrant, the person who
executed the warrant is to report back to the eligible Judge who
issued the warrant and the Judge may give such directions about
the giving of the occupier's notice as the Judge thinks fit.
(7) The giving of an occupier's notice under this section may be
postponed by the eligible Judge who issued the warrant if that
eligible Judge is satisfied that there are reasonable grounds for
that postponement.
(8) Directions under subsection (6) may be given at the same time as
a postponement is granted.
(9) The giving of an occupier's notice under this section may be
postponed on more than one occasion, but:
(a) must not be postponed on any one occasion for a period
exceeding 6 months, and
(b) must not be postponed for a total period of more than 18
months unless the eligible Judge is satisfied that there are
exceptional circumstances justifying the postponement.
(10) In this section:
intelligence gathering officer and police officer have the same
meanings as in section 27S.
(11) A reference in this section and in section 27V to a person who
executes a warrant includes a reference to another eligible police
officer (if the person was an eligible police officer) or another
eligible staff member of the Crime Commission (if the person
was such a staff member), but only if the person who executed the
warrant:
(a) has died, or
(b) has ceased to be an eligible police officer or eligible staff
member of the Crime Commission (as the case may be), or
(c) is absent from duty.
27V Notice to adjoining occupiers of execution of covert search
warrant
(1) A person who executes a covert search warrant is to cause an
occupier's notice to be prepared under this section if the
Page 17
Terrorism Legislation Amendment (Warrants) Bill 2005
Schedule 1 Principal amendments to Terrorism (Police Powers) Act 2002
execution of the warrant involved entering under section 27O (1)
(d) premises (the adjoining premises) adjoining or providing
access to the subject premises.
(2) The occupier's notice:
(a) is to specify or state the matters set out in section 27U (2)
(a)-(e), and
(b) is to specify or contain any other matters required by the
regulations.
(3) The occupier's notice is to be provided to the eligible Judge who
issued the warrant for that Judge's approval at the same time as
the occupier's notice prepared under section 27U in relation to
the execution of the warrant is provided under section 27U (3).
(4) As soon as practicable after the eligible Judge approves the
occupier's notice under this section, the person who executed the
warrant is to cause the notice to be given to a person of or above
the age of 18 years known to have occupied the adjoining
premises.
(5) The provisions of section 27U apply in relation to an occupier's
notice prepared under this section as follows:
(a) section 27U (4) and (6)-(9) apply as if a reference in those
provisions to an occupier's notice were a reference to an
occupier's notice prepared under this section,
(b) section 27U (6) applies as if a reference in that provision
to a person referred to in section 27U (5) were a reference
to an occupier referred to in subsection (4).
27W Destruction of records
(1) Within 12 months of the execution of a covert search warrant, the
Commissioner of Police or the Crime Commissioner is to
determine whether any copy, photocopy or other record made in
the execution of the warrant is reasonably required for the
purpose of an investigation or proceedings.
(2) Within each subsequent period of 12 months, the Commissioner
of Police or the Crime Commissioner is to further determine
whether any such record is reasonably required for that purpose
for so long as the record remains in existence.
(3) The Commissioner of Police or the Crime Commissioner is to
ensure that any such record is destroyed as soon as practicable
after determining that its retention is no longer reasonably
required for that purpose.
Page 18
Terrorism Legislation Amendment (Warrants) Bill 2005
Principal amendments to Terrorism (Police Powers) Act 2002 Schedule 1
(4) A requirement imposed under this section on the Commissioner
of Police applies only in relation to a record made in the
execution of a warrant by an eligible police officer.
(5) A requirement imposed under this section on the Crime
Commissioner applies only in relation to a record made in the
execution of a warrant by an eligible staff member of the Crime
Commission.
Division 5 Miscellaneous
27X Death or absence of eligible Judge who issued covert search
warrant
If the eligible Judge who issued a covert search warrant has died,
has ceased to be an eligible Judge or is absent:
(a) a warrant required to be provided to that Judge under
section 27I, or
(b) a report required to be provided to that Judge under section
27S, or
(c) an occupier's notice required to be provided to that Judge
under section 27U or 27V, or
(d) a power exercisable by that Judge under section 27U or
27V,
may be provided to, or may be exercised by, as the case may be,
any other eligible Judge.
27Y Applications to be dealt with in absence of public
Applications under this Part and any other matters arising under
this Part that are dealt with by an eligible Judge are to be dealt
with in the absence of the public.
27Z False or misleading information in applications or reports to
eligible Judge
(1) A person must not, in or in connection with an application for a
covert search warrant, a report or an occupier's notice, give
information to an eligible Judge that the person knows to be false
or misleading in a material particular.
Maximum penalty: 100 penalty units or imprisonment for 2
years, or both.
(2) This section applies to an application for a telephone warrant as
well as an application for a covert search warrant made in person.
Page 19
Terrorism Legislation Amendment (Warrants) Bill 2005
Schedule 1 Principal amendments to Terrorism (Police Powers) Act 2002
(3) This section applies whether or not the information given is also
verified on oath or affirmation or by affidavit.
27ZA Publication of documents
(1) A person must not intentionally or recklessly publish an
application for a covert search warrant, a report prepared under
section 27S, an occupier's notice or any information directly
derived from such an application, report or notice unless:
(a) an occupier's notice that relates to the execution of the
warrant has been given under section 27U, or
(b) directions have been given in relation to the giving of the
occupier's notice under section 27U (6).
Maximum penalty: 50 penalty units or imprisonment for 12
months, or both.
(2) This section does not make it an offence to publish any
application, report, notice or information if the publication is for
the purposes of:
(a) exercising any functions under this Part, or
(b) the internal management of NSW Police, the New South
Wales Crime Commission, the Supreme Court or the
Attorney General's Department.
27ZB Annual reports to be given to Attorney General and Police Minister
(1) The Commissioner of Police and the Crime Commissioner must
each report annually on the exercise of powers under this Part by
eligible police officers and eligible staff members of the Crime
Commission respectively.
(2) Each report is to be provided, within 4 months after each 30 June,
to the Police Minister and the Attorney General.
(3) The report is to specify the following matters in relation to the
year ended on that 30 June:
(a) the number of applications for covert search warrants
made under this Part and the number of those applications
granted,
(b) the number of applications for telephone warrants and the
number of those applications granted,
(c) the number of covert search warrants executed,
(d) the number of covert search warrants under which any
things were seized,
Page 20
Terrorism Legislation Amendment (Warrants) Bill 2005
Principal amendments to Terrorism (Police Powers) Act 2002 Schedule 1
(e) the number of covert search warrants under which any
things were placed in substitution for seized things,
(f) the number of covert search warrants under which any
things were returned or retrieved,
(g) the number of covert search warrants under which any
things were copied, photographed or otherwise recorded,
(h) the number of covert search warrants under which any
electronic equipment was operated by eligible police
officers or eligible staff members of the Crime
Commission,
(i) the number of covert search warrants under which any
things were tested,
(j) the number of arrests made in connection with a terrorist
act in respect of which a covert search warrant was
executed and the number of those arrests that have led to
the laying of charges in relation to the terrorist act,
(k) the number of complaints that are made under any Act
about conduct relating to the execution of a covert search
warrant by an eligible police officer or an eligible staff
member of the Crime Commission and the number of
those complaints that are, or have been, the subject of an
investigation under any Act,
(l) any other matters requested by the Police Minister or the
Attorney General.
(4) The reports may be combined with any other annual report of
NSW Police or the New South Wales Crime Commission.
(5) The reports are to be tabled in each House of Parliament as soon
as practicable after they are received by the Attorney General.
27ZC Monitoring by Ombudsman
(1) For the period of 2 years after the commencement of this Part (as
inserted by the Terrorism Legislation Amendment (Warrants) Act
2005), the Ombudsman is to keep under scrutiny the exercise of
powers conferred on members of NSW Police, the Crime
Commissioner and members of staff of the New South Wales
Crime Commission by this Part.
(2) For that purpose, the Ombudsman may require the Commissioner
of Police, the Crime Commissioner or the Director-General of the
Attorney General's Department to provide information about the
exercise of those powers.
Page 21
Terrorism Legislation Amendment (Warrants) Bill 2005
Schedule 1 Principal amendments to Terrorism (Police Powers) Act 2002
(3) The Ombudsman must, as soon as practicable after the expiration
of that 2-year period, prepare a report on the exercise of those
powers and furnish a copy of the report to the Minister, the
Commissioner of Police and the Crime Commissioner.
(4) The Minister is to lay (or cause to be laid) a copy of the report
before both Houses of Parliament as soon as practicable after the
Minister receives the report.
(5) If a House of Parliament is not sitting when the Minister seeks to
lay a report before it, the Minister may present copies of the
report to the Clerk of the House concerned.
(6) The report:
(a) is, on presentation and for all purposes, taken to have been
laid before the House, and
(b) may be printed by authority of the Clerk of the House, and
(c) if so printed, is for all purposes taken to be a document
published by or under the authority of the House, and
(d) is to be recorded:
(i) in the case of the Legislative Council, in the Minutes
of the Proceedings of the Legislative Council, and
(ii) in the case of the Legislative Assembly, in the Votes
and Proceedings of the Legislative Assembly,
on the first sitting day of the House after receipt of the
report by the Clerk.
[2] Section 29A
Insert after section 29:
29A Ministerial arrangements for things seized in connection with
extra-territorial offences
The Minister may enter into arrangements with a Minister of the
Commonwealth under which:
(a) things seized under this Act that may be relevant to the
investigation of an offence against the law of the
Commonwealth:
(i) are to be transmitted to the Commissioner of the
Australian Federal Police for the purposes of the
investigation of, or proceedings in respect of, that
offence, and
(ii) when no longer required for the purposes of any
such investigation or proceedings, are (unless
Page 22
Terrorism Legislation Amendment (Warrants) Bill 2005
Principal amendments to Terrorism (Police Powers) Act 2002 Schedule 1
disposed of by order or direction of a court or
Magistrate) to be returned to the Commissioner of
Police or (if the things have been seized by a
member of staff of the New South Wales Crime
Commission) the Commissioner for the New South
Wales Crime Commission, and
(b) things seized under the law of the Commonwealth that
may be relevant to the investigation of an offence against
the law of this State:
(i) are to be transmitted to the Commissioner of Police,
and
(ii) when no longer required for the purposes of the
investigation of an offence, or proceedings in
respect of an offence, are (unless disposed of by
order or direction of a court or Magistrate) to be
returned to the Commissioner of the Australian
Federal Police.
[3] Section 36 Review of Act
Insert after section 36 (1):
(1A) For the purpose of the review, the Minister may require the
Commissioner of Police or the Commissioner for the New South
Wales Crime Commission to provide information about the
exercise of functions in respect of covert search warrants under
this Act by members of NSW Police, members of the Crime
Commission or members of staff of the Crime Commission.
Page 23
Terrorism Legislation Amendment (Warrants) Bill 2005
Schedule 2 Consequential amendments to Terrorism (Police Powers) Act 2002
Schedule 2 Consequential amendments to
Terrorism (Police Powers) Act 2002
(Section 3)
[1] Section 4 Other definitions
Omit the definitions of authorisation, recognised law enforcement officer
and target from section 4 (1).
[2] Section 4 (1)
Insert in alphabetical order:
exercise a function includes perform a duty.
function includes a power or duty.
occupier of premises includes a person in charge of the premises.
[3] Section 4 (2)
Omit the subsection.
[4] Section 4A
Insert after section 4:
4A Extraterritoriality of terrorist act no barrier
To avoid doubt, functions conferred by this Act in relation to a
terrorist act may be exercised whether or not the terrorist act has
been, is being, or is likely to be committed in New South Wales.
[5] Part 2
Insert after Part 1:
Part 2 Special powers
Division 1 Preliminary
4B Interpretation
(1) In this Part:
authorisation means an authorisation given under this Part in
accordance with Division 2.
recognised law enforcement officer means a person appointed
under Division 4.
target of an authorisation--see section 7 (2).
Page 24
Terrorism Legislation Amendment (Warrants) Bill 2005
Consequential amendments to Terrorism (Police Powers) Act 2002 Schedule 2
(2) For the purposes of this Part:
(a) a person in an area that is the target of an authorisation
includes a person who is about to enter the area or who has
recently left the area, and
(b) a vehicle in an area that is the target of an authorisation
includes a vehicle that is about to enter the area or that has
recently left the area.
[6] Parts 2-4
Renumber as Divisions 2-4 of Part 2 (as inserted by item [5]).
[7] Sections 5, 6, 8 (2), 11 (3), 13 (1), 15, 19A (1), 20 (1), 21, 22, 23 (1), 24 (5)
and 26
Omit "this Part" wherever occurring. Insert instead "this Division".
[8] Sections 5-7, 10 (3) (a), 14 (and the note to the section), 14A (1), 15, 23
(2), 24 (1) and 25 (1)
Omit "this Act" wherever occurring. Insert instead "this Part".
[9] Section 14, note
Omit "Part 4". Insert instead "Division 4".
[10] Part 2 (as inserted by item [5]), Division 3 (as renumbered by item [6])
Omit "Special powers" from the heading. Insert instead "Powers".
[11] Section 26 Report to be given to Attorney General and Police Minister
Renumber section 26 as section 14B and transfer to the end of Division 2 of
Part 2 (as renumbered by item [6]).
[12] Part 5 Miscellaneous
Renumber as Part 4.
[13] Section 27 Return of seized things
Omit "special" from section 27 (1).
[14] Section 27 (1) (a)
Omit "as evidence".
[15] Section 28 Disposal of property on application to court
Omit "special" from section 28 (1).
Page 25
Terrorism Legislation Amendment (Warrants) Bill 2005
Schedule 2 Consequential amendments to Terrorism (Police Powers) Act 2002
[16] Section 29 Protection of police acting in execution of Part 2
authorisation
Omit "this Act". Insert instead "Part 2".
[17] Section 35
Insert after section 34:
35 Savings and transitional provisions
Schedule 2 has effect.
[18] Schedule 2
Insert after Schedule 1:
Schedule 2 Savings and transitional provisions
(Section 35)
Part 1 General
1 Regulations
(1) The regulations may contain provisions of a savings or
transitional nature consequent on the enactment of the following
Acts:
Terrorism Legislation Amendment (Warrants) Act 2005
(2) Any such provision may, if the regulations so provide, take effect
from the date of assent to the Act concerned or a later date.
(3) To the extent to which any such provision takes effect from a date
that is earlier than the date of its publication in the Gazette, the
provision does not operate so as:
(a) to affect, in a manner prejudicial to any person (other than
the State or an authority of the State), the rights of that
person existing before the date of its publication, or
(b) to impose liabilities on any person (other than the State or
an authority of the State) in respect of anything done or
omitted to be done before the date of its publication.
Page 26
Terrorism Legislation Amendment (Warrants) Bill 2005
Consequential amendments to Terrorism (Police Powers) Act 2002 Schedule 2
Part 2 Provision consequent on enactment of
Terrorism Legislation Amendment
(Warrants) Act 2005
2 Covert search warrants
Part 3 of this Act (as inserted by the Terrorism Legislation
Amendment (Warrants) Act 2005) applies in relation to a terrorist
act, whether committed before or after the commencement of that
Part.
Page 27
Terrorism Legislation Amendment (Warrants) Bill 2005
Schedule 3 Amendment of Listening Devices Act 1984
Schedule 3 Amendment of Listening Devices Act
1984
(Section 4)
[1] Section 16 Warrants authorising use of listening devices
Insert "or, if the offence is a terrorism offence, 90 days" after "days" in section
16 (4) (c).
[2] Section 16 (8)
Insert after section 16 (7):
(8) In this section:
terrorism offence means an offence under Part 6B of the Crimes
Act 1900 or an offence against section 101.1, 101.2, 101.4, 101.5,
101.6, 102.2, 102.3, 102.4, 102.5, 102.6, 102.7 or 103.1 of the
Criminal Code set out in the Schedule to the Criminal Code Act
1995 of the Commonwealth.
Page 28
Terrorism Legislation Amendment (Warrants) Bill 2005
Amendment of Crimes Act 1900 Schedule 4
Schedule 4 Amendment of Crimes Act 1900
(Section 5)
Part 6B
Insert after Part 6A:
Part 6B Terrorism
Note. This Part is to be repealed on the second anniversary of its commencement.
310I Definitions
In this Part:
Commonwealth Criminal Code means the Criminal Code set out
in the Schedule to the Criminal Code Act 1995 of the
Commonwealth.
terrorist organisation and member of a terrorist organisation
have the meaning they are given by section 102.1 of the
Commonwealth Criminal Code.
310J Membership of terrorist organisation
(1) A person commits an offence if:
(a) the person intentionally is a member of a terrorist
organisation, and
(b) the organisation is a terrorist organisation, and
(c) the person knows the organisation is a terrorist
organisation.
Maximum penalty: Imprisonment for 10 years.
(2) Subsection (1) does not apply if the person proves that he or she
took all reasonable steps to cease to be a member of the
organisation as soon as practicable after the person knew that the
organisation was a terrorist organisation.
310K Multiplicity of offences
If:
(a) an act or omission is an offence against both this Part and
the Commonwealth Criminal Code, and
Page 29
Terrorism Legislation Amendment (Warrants) Bill 2005
Schedule 4 Amendment of Crimes Act 1900
(b) the offender has been punished for that offence under the
Commonwealth Criminal Code,
the offender is not liable to be punished for the offence under this
Part.
Page 30