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This is a Bill, not an Act. For current law, see the Acts databases.
PARLIAMENT OF VICTORIA
Terrorism (Community Protection) Act 2003
Act No.
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 1
1. Purposes 1
2. Commencement 2
3. Definitions 2
4. What is a terrorist act? 4
PART 2--COVERT SEARCH WARRANTS 5
5. Jurisdiction 6
6. Covert search warrants 6
7. Application for warrant 6
8. Determining the application 7
9. What does a warrant authorise? 9
10. Warrant may be granted by telephone 10
11. Report to court 12
12. No publication of report of proceeding 13
13. Annual reports 13
PART 3--POLICE POWERS TO DETAIN AND
DECONTAMINATE 15
14. Interpretation 15
15. Definitions 15
16. Authorisation 16
17. How may an authorisation be given? 16
18. What is authorised? 17
19. When does an authorisation lapse? 18
20. Extended authorisation 18
21. Use of reasonable and necessary force 19
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Clause Page
PART 4--MANDATORY REPORTING OF THEFT OR LOSS OF
PRESCRIBED CHEMICALS AND OTHER SUBSTANCES 20
22. Reporting of theft or loss of prescribed chemical or other
substance 20
PART 5--PROTECTION OF COUNTER-TERRORISM
INFORMATION 21
23. Protection of counter-terrorism information in legal proceedings 21
24. Court may inspect documents 23
PART 6--ESSENTIAL SERVICES INFRASTRUCTURE RISK
MANAGEMENT 24
25. Object of this Part 24
26. What is an essential service? 24
27. Who is the relevant Minister? 24
28. Application of this Part to an essential service 25
29. Duty to prepare risk management plan 25
30. What are the objectives of a risk management plan? 26
31. What must a risk management plan contain? 26
32. Duty to audit and update risk management plan 27
33. Duty to participate in training exercises 27
34. Certificate as to plan 28
35. Duty to provide copy of plan 28
36. Minister may issue directions 28
37. Application to Supreme Court 29
PART 7--GENERAL 30
38. Review 30
39. Operation of Act 30
40. Regulations 30
41. Expiry 31
PART 8--AMENDMENT TO FREEDOM OF INFORMATION
ACT 1982 AND VICTORIAN CIVIL AND ADMINISTRATIVE
TRIBUNAL ACT 1998 32
42. New section 29A inserted in Freedom of Information Act 1982 32
29A. Documents affecting national security, defence or
international relations 32
43. New section 53AA inserted in Freedom of Information Act
1982 33
53AA. Procedure where Tribunal determines that there do not
exist reasonable grounds for claim under section 29A 33
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Clause Page
44. Consequential amendments 35
45. Amendment to Victorian Civil and Administrative Tribunal
Act 1998 35
29B. Powers of Tribunal 35
29C. Constitution of Tribunal for purposes of proceedings
under clause 29B 36
29D. Hearing of certain proceedings before the Tribunal 36
ENDNOTES 38
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551002B.I1-27/2/2003 BILL LA CIRCULATION 25-10-2004
PARLIAMENT OF VICTORIA
Initiated in Assembly 26 February 2003
A BILL
to provide for the prevention of and response to terrorist acts, to
amend the Freedom of Information Act 1982 and the
Victorian Civil and Administrative Tribunal Act 1998 and
for other purposes.
Terrorism (Community Protection) Act
2003
The Parliament of Victoria enacts as follows:
PART 1--PRELIMINARY
1. Purposes
The main purposes of this Act are--
(a) to provide new powers and obligations
5 relating to the prevention of, and the
response to, terrorist acts; and
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Terrorism (Community Protection) Act 2003
Act No.
Part 1--Preliminary
s. 2
(b) to provide for the application for, and the
grant and execution of, warrants authorising
the covert search of premises by members of
the police force; and
5 (c) to provide for mandatory reporting of the
theft or loss of certain chemicals and other
substances; and
(d) to provide for the operators of certain
essential services to prepare risk
10 management plans to identify and mitigate
the risk of terrorist acts; and
(e) to protect counter-terrorism methods from
disclosure in legal proceedings.
2. Commencement
15 (1) This Part and Parts 3, 5, 7 and 8 come into
operation on the day after the day on which this
Act receives the Royal Assent.
(2) Subject to sub-section (3), Parts 2, 4 and 6 come
into operation on a day or days to be proclaimed.
20 (3) If a provision of this Act does not come into
operation before 1 July 2004, it comes into
operation on that day.
3. Definitions
In this Act--
25 "Assistant Commissioner" means an Assistant
Commissioner appointed under section 4(2)
of the Police Regulation Act 1958;
"Chief Commissioner" means the Chief
Commissioner of Police appointed under
30 section 4(1) of the Police Regulation Act
1958;
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"counter-terrorism information" means
information relating to covert methods of
investigation of a terrorist act or suspected
terrorist act;
5 "declared essential service" means an essential
service or part of an essential service
declared under section 28;
"Deputy Commissioner" means a Deputy
Commissioner appointed under section 4(2)
10 of the Police Regulation Act 1958;
"essential service" has the meaning given by
section 26;
"member of the force" has the same meaning as
in the Police Regulation Act 1958;
15 "operator", in relation to a declared essential
service, means--
(a) a person specified or in a class
specified in relation to that declared
essential service under section 28; or
20 (b) if no person or class is specified in
relation to the declared essential
service, the person who is responsible
for the day to day management of the
declared essential service;
25 "premises" includes--
(a) land; and
(b) a building or vehicle; and
(c) a part of a building or vehicle; and
(d) any place, whether built on or not;
30 "terrorist act" has the meaning given by
section 4;
"thing" includes any object, article or material.
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4. What is a terrorist act?
(1) In this Act, "terrorist act" means an action or
threat of action where--
(a) the action falls within sub-section (2) and
5 does not fall within sub-section (3); and
(b) the action is done or the threat is made with
the intention of advancing a political,
religious or ideological cause; and
(c) the action is done or the threat is made with
10 the intention of--
(i) coercing, or influencing by
intimidation, the government of the
Commonwealth or a State, Territory or
foreign country, or of part of a State,
15 Territory or foreign country; or
(ii) intimidating the public or a section of
the public.
(2) Action falls within this sub-section if it--
(a) causes serious harm that is physical harm to
20 a person; or
(b) causes serious damage to property; or
(c) causes a person's death; or
(d) endangers a person's life, other than the life
of the person taking the action; or
25 (e) creates a serious risk to the health or safety
of the public or a section of the public; or
(f) seriously interferes with, seriously disrupts,
or destroys, an electronic system including,
but not limited to--
30 (i) an information system; or
(ii) a telecommunications system; or
(iii) a financial system; or
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(iv) a system used for the delivery of
essential government services; or
(v) a system used for, or by, an essential
public utility; or
5 (vi) a system used for, or by, a transport
system.
(3) Action falls within this sub-section if it--
(a) is advocacy, protest, dissent or industrial
action; and
10 (b) is not intended--
(i) to cause serious harm that is physical
harm to a person; or
(ii) to cause a person's death; or
(iii) to endanger the life of a person, other
15 than the person taking action; or
(iv) to create a serious risk to the health or
safety of the public or a section of the
public.
Note: The above definition is in the same terms as that to be
20 inserted into Part 5.3 of the Commonwealth Criminal Code
by a Commonwealth Act based on the reference to the
Parliament of the Commonwealth of certain matters relating
to terrorist acts made by the Terrorism (Commonwealth
Powers) Act 2003.
__________________
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Part 2--Covert Search Warrants
s. 5
PART 2--COVERT SEARCH WARRANTS
5. Jurisdiction
A covert search warrant under this Part may only
be issued by the Supreme Court.
5 6. Covert search warrants
(1) A member of the force, with the approval of the
Chief Commissioner, a Deputy Commissioner or
an Assistant Commissioner, may apply to the
Supreme Court for the issue of a warrant under
10 this Part in respect of any premises if that member
suspects or believes, on reasonable grounds,
that--
(a) a terrorist act has been, is being, or is likely
to be, committed; and
15 (b) the entry and search of the premises would
substantially assist in preventing or
responding to that terrorist act or suspected
terrorist act; and
(c) it is necessary for that entry and search to be
20 conducted without the knowledge of any
occupier of those premises.
(2) An application for a warrant is to be heard in
closed court.
7. Application for warrant
25 (1) An application for a warrant under this Part must
be made in writing, supported by an affidavit,
setting out the grounds on which the warrant is
sought.
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(2) The Supreme Court must not issue a warrant
unless--
(a) the application for the warrant sets out the
grounds on which the warrant is being
5 sought; and
(b) the applicant has given the Court, either
orally or in writing, any further information
that it requires concerning the grounds on
which the warrant is being sought; and
10 (c) the information given by the applicant is
verified before the Court on oath (or
affirmation) or by affidavit.
(3) A Judge of the Supreme Court may administer an
oath or affirmation or take an affidavit for the
15 purposes of an application for a warrant.
8. Determining the application
(1) The Supreme Court may issue a warrant under
this Part if the Court is satisfied that there are
reasonable grounds for the suspicion or belief
20 founding the application for the warrant.
(2) In determining whether a warrant should be
issued, the Court must have regard to--
(a) the nature and gravity of the terrorist act or
suspected terrorist act; and
25 (b) the extent to which the exercise of powers
under the warrant would assist the
prevention of, or response to, the terrorist act
or suspected terrorist act; and
(c) the extent to which the privacy of any person
30 is likely to be affected; and
(d) any conditions to which the warrant may be
made subject.
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(3) A warrant must specify--
(a) that the purpose of the warrant is to assist the
prevention of, or response to, a terrorist act
or suspected terrorist act; and
5 (b) the address or location of any premises to
which the warrant relates; and
(c) the name of the applicant; and
(d) the name or a description of any other person
who may enter premises named or described
10 in the warrant; and
(e) whether more than one entry of premises
named or described in the warrant is
authorised; and
(f) the date on which the warrant is issued; and
15 (g) the period during which the warrant is in
force, being a period not exceeding 30 days;
and
(h) if known, the names of occupiers of premises
named or described in the warrant; and
20 (i) if relevant, the name or a description of the
kind of thing to be searched for, seized,
placed, copied, photographed, recorded,
operated, printed, tested or sampled; and
(j) if applicable, any further conditions to which
25 the warrant is subject.
(4) Nothing in this Part prevents the issue of a further
warrant in respect of premises in respect of which
a warrant under this Part has previously been
issued.
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9. What does a warrant authorise?
(1) A warrant issued under this Part authorises the
person to whom it is directed, together with any
other person named or described in the warrant
5 and with any necessary equipment--
(a) to enter, by force or impersonation if
necessary, any premises named or described
in the warrant, or other specified premises
adjoining or providing access to the premises
10 for any of the purposes referred to in
paragraph (b), (c), (d), (e), (f) or (g); and
(b) to search the premises for any kind of thing
named or described in the warrant; and
(c) if the warrant authorises seizure of a kind of
15 thing, to seize any thing of that kind; and
(d) if the warrant authorises placing a kind of
thing, to place any thing of that kind on the
premises in substitution for a thing seized
under paragraph (c); and
20 (e) if the warrant authorises copying,
photographing or otherwise recording a
description of a kind of thing, to copy,
photograph or otherwise record a description
of any thing of that kind on the premises; and
25 (f) to operate any electronic equipment that is
on the premises and copy, print or otherwise
record information from that equipment; and
(g) if the warrant authorises testing, or taking
and keeping a sample of, a kind of thing, to
30 test, or take and keep a sample of, any thing
of that kind.
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(2) The Supreme Court may direct that any thing
seized under a warrant be returned to its owner,
subject to any condition that the Court thinks fit, if
in the opinion of the Court it can be returned
5 consistently with the interests of justice.
(3) Except as provided by this Part, the rules to be
observed with respect to search warrants under the
Magistrates' Court Act 1989 extend and apply to
warrants under this Part.
10 10. Warrant may be granted by telephone
(1) If, in urgent circumstances, a member of the force
considers it necessary to do so, the member may
apply for a warrant under this Part by telephone in
accordance with this section.
15 (2) Before making the application, the member must
prepare an affidavit setting out the grounds on
which the warrant is sought, but may, if necessary,
make the application before the affidavit has been
sworn.
20 (3) If transmission by facsimile machine is available,
the member must transmit a copy of the affidavit,
whether sworn or unsworn, to the Supreme Court.
(4) Subject to sections 7(2) and 8(1) and having
regard to the factors in section 8(2), the Supreme
25 Court may issue a warrant on an application made
by telephone after considering--
(a) the terms of the affidavit; and
(b) any further information required by the
Court concerning the grounds on which the
30 warrant is sought.
(5) If the Supreme Court issues a warrant on an
application made by telephone, it must--
(a) inform the applicant of the terms of the
warrant and of the date on which and the
35 time at which it was issued, and record on
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the warrant the reasons for issuing the
warrant; and
(b) if transmission by facsimile machine is
available, transmit a copy of the warrant to
5 the applicant.
(6) If a copy of the warrant has not been transmitted
by facsimile machine, the applicant must--
(a) complete a form of warrant in the terms
furnished to the applicant by the Supreme
10 Court and must write on it the name of the
Judge who constituted the Court and the date
on which and the time at which the warrant
was issued; and
(b) not later than the day following the date of
15 the execution of the warrant or the expiry of
the warrant, whichever is earlier, send the
form of warrant completed by the applicant
to the Court.
(7) If an application is made by telephone, whether or
20 not a warrant is issued, the applicant must, not
later than the day following the day on which the
application was made, send the original affidavit
duly sworn to the Supreme Court.
(8) In any proceeding, if it is material for a court to be
25 satisfied that an entry, search or seizure was
authorised in accordance with this section, and a
warrant issued by the Supreme Court in
accordance with this section authorising the entry,
search or seizure is not produced in evidence, the
30 court must assume, unless the contrary is proved,
that the entry, search or seizure was not authorised
by such a warrant.
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11. Report to court
(1) The person to whom a warrant is issued under this
Part must, no later than 7 days after the warrant
expires, make a report in accordance with this
5 section to the Supreme Court.
Penalty: Level 8 imprisonment (1 year
maximum) or a level 8 fine
(120 penalty units maximum) or both.
(2) The report must--
10 (a) state which powers were exercised under the
warrant; and
(b) give details of the compliance with the
conditions, if any, to which the warrant was
subject; and
15 (c) state the period during which the entry and
search was conducted; and
(d) state the name or description of any person
who entered premises named or described in
the warrant; and
20 (e) if known, state the names of the occupiers of
premises entered; and
(f) give details of the seizure, placement,
copying, photographing, recording,
operation, printing, testing or sampling of
25 any thing; and
(g) if known, give details of the benefit of the
execution of the warrant to the prevention of
or response to the terrorist act or suspected
terrorist act.
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12. No publication of report of proceeding
A person must not publish--
(a) a report of the whole or any part of a
proceeding on an application for a warrant
5 under this Part; or
(b) any information derived from a proceeding
referred to in paragraph (a); or
(c) a report of, or any information derived from,
a report to the Supreme Court made under
10 section 11(1)--
unless the Supreme Court orders otherwise.
Penalty: In the case of a natural person, level 7
imprisonment (2 years maximum) or a
level 7 fine (240 penalty units
15 maximum) or both;
In the case of a body corporate,
1000 penalty units for a first offence
and 20 000 penalty units for a
subsequent offence.
20 13. Annual reports
(1) The Chief Commissioner must submit a report
relating to this Part to the Minister that includes
the following information in respect of each
financial year--
25 (a) the number of applications by, and the
number of warrants issued to, members of
the force during that year; and
(b) the number of telephone applications during
that year; and
30 (c) the number of applications by members of
the force that were refused; and
(d) the number of premises covertly entered; and
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(e) the number of occasions on which items
were seized; and
(f) the number of occasions on which items
were placed; and
5 (g) the number of occasions on which electronic
equipment was operated; and
(h) any other information that the Minister
considers appropriate.
(2) The report must be submitted to the Minister as
10 soon as practicable after the end of each financial
year.
(3) The Minister must cause the report to be laid
before each House of the Parliament, within
12 sitting days of that House, after it is received
15 by the Minister.
__________________
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Terrorism (Community Protection) Act 2003
Act No.
Part 3--Police Powers to Detain and Decontaminate
s. 14
PART 3--POLICE POWERS TO DETAIN AND
DECONTAMINATE
14. Interpretation
In giving an authorisation or exercising powers
5 under this Part, it is the intention of the Parliament
that no unnecessary restrictions on personal
liberty or privacy should be imposed.
15. Definitions
In this Part--
10 "danger area" means an area in respect of which
an authorisation is given by a senior police
officer under Part 3;
"DISPLAN" has the same meaning as in the
Emergency Management Act 1986;
15 "emergency" has the same meaning as in the
Emergency Management Act 1986;
"emergency services agency" means any of the
following--
(a) the Country Fire Authority established
20 under the Country Fire Authority Act
1958;
(b) the Metropolitan Fire and Emergency
Services Board established under the
Metropolitan Fire Brigades Act 1958;
25 (c) an agency established by or under an
Act of the Commonwealth or of another
State or a Territory with functions
corresponding to those of an agency
referred to in paragraph (a) or (b);
30 (d) any other prescribed agency;
"senior police officer" means a member of the
force of or above the rank of inspector;
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Part 3--Police Powers to Detain and Decontaminate
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"volunteer emergency worker", in relation to an
emergency services agency, means a person
who, with the approval of the agency,
provides services (without remuneration or
5 reward) on behalf of the agency for or in
relation to the decontamination of any
person.
16. Authorisation
(1) A senior police officer may, for the purpose of
10 protecting people from chemical, biological or
radiological contamination, give an authorisation
to a member of the force under this Part in relation
to an area if that senior police officer forms a
belief on reasonable grounds that--
15 (a) a terrorist act has or may have occurred; and
(b) that area, or people in that area, may have
been exposed to such contamination.
(2) If the senior police officer who has given an
authorisation under sub-section (1) ceases to have
20 the belief referred to in that sub-section, he or she
must immediately notify the Chief Commissioner
of that fact.
17. How may an authorisation be given?
(1) An authorisation under this Part may be given
25 orally or in writing.
(2) If the authorisation is given orally, it must be
confirmed in writing as soon as reasonably
practicable.
(3) An authorisation must--
30 (a) state that it is given under this Part; and
(b) generally describe the terrorist act or
suspected terrorist act to which it relates; and
(c) specify the name or description of any
member of the force to which it is given; and
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Part 3--Police Powers to Detain and Decontaminate
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(d) name or describe the area that may have
been exposed, or in which there are people
that may have been exposed, to
contamination; and
5 (e) specify the time at which it is given.
18. What is authorised?
(1) An authorisation may authorise a member of the
force to--
(a) direct another member of the force to
10 exercise powers referred to in paragraph (b),
(c) or (d) in respect of people in the danger
area suspected of exposure to contamination;
and
(b) direct a person or group of people to enter,
15 not to enter or to leave any particular
premises or area; and
(c) detain a person (whether alone or with
others); and
(d) direct a person to submit to decontamination
20 procedures by an officer of, or person
employed by, or volunteer emergency
worker of, an emergency services agency.
(2) If an oral direction is given to a group of people, it
is deemed to have been given to each member of
25 the group if the oral direction is made in a manner
which is likely to be audible to all the members of
the group or as many of them as reasonably
practicable.
(3) An authorised member of the force may exercise a
30 power under sub-section (1) for the purpose of
preventing or limiting the spread of contamination
caused by the terrorist act or suspected terrorist
act and may give any direction necessary in
connection with the exercise of the power.
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(4) A member of the force must facilitate any
reasonable request for communication made by a
person subject to detention under section 18(1)(c).
19. When does an authorisation lapse?
5 (1) An authorisation (including an authorisation
extended under section 20(1)) lapses--
(a) on notification to the Chief Commissioner
under section 16(2);
(b) if the agency primarily responsible under
10 DISPLAN for responding to the emergency
caused by the suspected contamination
notifies the Chief Commissioner that the
authorisation should lapse, on that
notification;
15 (c) in any event, 8 hours after the time at which
it is given or on expiry of the extended
period under section 20(1), as the case
requires.
Note: By section 15 of the Emergency Management Act
20 1986, DISPLAN contains provisions identifying, in
relation to each form of emergency specified, the
agency primarily responsible for responding to the
emergency.
(2) The Chief Commissioner must ensure that any
25 person to whom an authorisation was given is
notified of the lapse of that authorisation
immediately after receiving a notification under
sub-section (1)(b) or section 16(2).
20. Extended authorisation
30 (1) The Chief Commissioner, a Deputy
Commissioner or an Assistant Commissioner may
extend the period of authorisation beyond the
8 hour period referred to in section 19(1)(c) if he
or she decides that extended authorisation is
35 necessary for the purpose of protecting public
health.
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(2) The extended period of authorisation must not be
for more than 16 hours duration in total (whether
that total is a continuous period or a cumulative
total of separate periods).
5 (3) An extension may only be granted under sub-
section (1) with the agreement of the agency
referred to in section 19(1)(b).
21. Use of reasonable and necessary force
If a person refuses to comply with a direction
10 given under this Part, an authorised member of the
force, or another member of the force acting under
the direction of an authorised member of the
force, may use reasonable and necessary force to
ensure compliance with that direction.
__________________
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Terrorism (Community Protection) Act 2003
Act No.
Part 4--Mandatory Reporting of Theft or Loss of Prescribed Chemicals and
s. 22
other Substances
PART 4--MANDATORY REPORTING OF THEFT OR LOSS
OF PRESCRIBED CHEMICALS AND OTHER SUBSTANCES
22. Reporting of theft or loss of prescribed chemical or
other substance
5 An occupier of any premises, on becoming aware
of any theft or loss from those premises of a
prescribed quantity of a prescribed chemical or
other prescribed substance--
(a) must inform a member of the force of that
10 fact without delay; and
(b) if so requested by a member of the force,
must supply a written report to that member
setting out details of the theft or loss.
Penalty: In the case of a natural person, level 10
15 fine (10 penalty units maximum);
In the case of a body corporate,
120 penalty units.
__________________
20
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Terrorism (Community Protection) Act 2003
Act No.
Part 5--Protection of Counter-terrorism Information
s. 23
PART 5--PROTECTION OF COUNTER-TERRORISM
INFORMATION
23. Protection of counter-terrorism information in legal
proceedings
5 (1) If in any legal proceeding within the meaning of
the Evidence Act 1958 an issue arises relating to
the disclosure of counter-terrorism information
and (but for this section) a person would be
entitled to require another person to disclose that
10 information, the court (within the meaning of that
Act) may excuse that person from the requirement
to disclose if satisfied that--
(a) disclosure would prejudice the prevention,
investigation or prosecution of a terrorist act
15 or suspected terrorist act; and
(b) the public interest in preserving secrecy or
confidentiality outweighs the public interest
in disclosure.
Note: Under the Evidence Act 1958, "legal proceeding"
20 includes a civil or criminal proceeding before a court,
an inquest held by a coroner and a Royal
Commission. Also under that Act, "court" includes
a person acting judicially.
(2) Without limiting the matters the court may
25 consider for the purposes of sub-section (1), the
court must consider the following--
(a) the importance of the information in the legal
proceeding; and
(b) if the legal proceeding is a criminal
30 proceeding, whether the party seeking
disclosure of the information is the defendant
or the prosecutor; and
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Terrorism (Community Protection) Act 2003
Act No.
Part 5--Protection of Counter-terrorism Information
s. 23
(c) if the legal proceeding is a criminal appeal
proceeding, including an application for
leave to appeal, whether the party seeking
disclosure of the information was the
5 defendant or the prosecutor in the judgment
or order from which the appeal is brought;
and
(d) the nature of the offence, cause of action or
defence to which the information relates, and
10 the nature of the subject matter of the
proceeding; and
(e) the likely effect of disclosure of the
information, and the means available to limit
its publication; and
15 (f) whether the substance of the information has
already been disclosed; and
(g) if the proceeding is a criminal proceeding
and the party seeking disclosure of the
information is the defendant, whether the
20 order is to be made subject to the condition
that the prosecution be stayed.
(3) In deciding whether to excuse a person from a
requirement to disclose information, the court may
inform itself in any way it thinks fit.
25 (4) In this section, "disclosure" includes disclosure,
whether by order, subpoena or otherwise, by the--
(a) inspection, production or discovery of
documents; and
(b) giving of evidence; and
30 (c) answering of interrogatories; and
(d) provision of particulars.
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Terrorism (Community Protection) Act 2003
Act No.
Part 5--Protection of Counter-terrorism Information
s. 24
24. Court may inspect documents
If a question arises under section 23 in relation to
a document, the court may order the production of
the document and may inspect it for the purpose
5 of determining the question.
__________________
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551002B.I1-27/2/2003 BILL LA CIRCULATION 25-10-2004
Terrorism (Community Protection) Act 2003
Act No.
Part 6--Essential Services Infrastructure Risk Management
s. 25
PART 6--ESSENTIAL SERVICES INFRASTRUCTURE RISK
MANAGEMENT
25. Object of this Part
The object of this Part is to provide for the
5 involvement of the operators of essential services
in planning for the protection of those essential
services from the effects of terrorist acts.
26. What is an essential service?
(1) For the purposes of this Part, "essential service"
10 means any of the following services--
(a) transport;
(b) fuel (including gas);
(c) light;
(d) power;
15 (e) water;
(f) sewerage;
(g) a service (whether or not of a type similar to
the foregoing) declared to be an essential
service by the Governor in Council under
20 sub-section (2).
(2) The Governor in Council, by Order published in
the Government Gazette, may declare any service
to be an essential service for the purposes of this
Part.
25 27. Who is the relevant Minister?
For the purposes of this Part, "relevant
Minister" in relation to an essential service,
means the Minister for the time being designated
by the Premier as the relevant Minister for that
30 essential service.
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Terrorism (Community Protection) Act 2003
Act No.
Part 6--Essential Services Infrastructure Risk Management
s. 28
28. Application of this Part to an essential service
(1) The Governor in Council, by Order published in
the Government Gazette, may declare that this
Part is to apply to an essential service or to any
5 part of an essential service.
(2) For the purposes of this section, a part of an
essential service may include--
(a) any infrastructure, premises, assets or goods
used for the purpose of generation,
10 production, extraction, storage, transmission,
distribution, administration or operation of
the essential service;
(b) any communication system used for or
relating to the essential service, including
15 any system used to generate, send, receive,
store or otherwise process electronic
communications for the purpose of the
essential service.
(3) An Order under sub-section (1) may specify that a
20 person or a person in a specified class of person is
the operator of the essential service for the
purposes of this Part.
29. Duty to prepare risk management plan
(1) The operator of a declared essential service must
25 prepare a risk management plan for that essential
service in accordance with this Part.
(2) The plan must be prepared within the time
determined by the relevant Minister and notified
to the operator.
30 (3) The plan may form part of any other risk
management plan prepared by the operator for the
essential service.
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Terrorism (Community Protection) Act 2003
Act No.
Part 6--Essential Services Infrastructure Risk Management
s. 30
30. What are the objectives of a risk management plan?
The objectives of a risk management plan are--
(a) the prevention of terrorist acts in relation to
the declared essential service; and
5 (b) the mitigation of the effects of a terrorist act;
and
(c) the recovery of the declared essential service
from a terrorist act; and
(d) the continuity of the declared essential
10 service in the event of a terrorist act.
31. What must a risk management plan contain?
A risk management plan for a declared essential
service must contain--
(a) an assessment of the risks to the declared
15 essential service of terrorist acts; and
(b) a plan of the measures to be undertaken to
prevent or reduce the risk including ensuring
the physical security of key infrastructure;
and
20 (c) a plan for the measures to be taken in the
event of a terrorist act including--
(i) the procedures for response to the
terrorist act; and
(ii) the procedures for recovery of the
25 declared essential service from the
terrorist act; and
(iii) the procedures to provide for the
continued safe operation of the declared
essential service; and
30 (d) details of the positions of the persons
responsible for the operation of the risk
management plan in the event of a terrorist
act; and
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Terrorism (Community Protection) Act 2003
Act No.
Part 6--Essential Services Infrastructure Risk Management
s. 32
(e) procedures for determining whether or not
there should be public notification of a
terrorist act and if so, the procedures for that
notification; and
5 (f) procedures for immediate communication
with the relevant Minister and with
emergency services in the event of a terrorist
act; and
(g) details of the measures to be taken to protect
10 the declared essential service in the event of
a terrorist act on another essential service on
which the declared essential service is
dependent; and
(h) details of the co-ordination of the risk
15 management plan with any relevant
municipal emergency management plan
prepared under the Emergency
Management Act 1986; and
(i) details of the training to be provided to staff
20 in relation to the procedures to be followed
to prevent or respond to terrorist acts.
32. Duty to audit and update risk management plan
(1) The operator of a declared essential service must
ensure that the risk management plan is audited on
25 an annual basis to ensure that the plan is still
adequate to meet the requirements of section 31.
(2) The operator of a declared essential service must
ensure that the risk management plan is amended
as soon as practicable after an audit of the plan to
30 address any deficiencies identified in the audit.
33. Duty to participate in training exercises
(1) At least once in each year (or any longer period
determined by the Minister in a particular case),
the operator of a declared essential service must--
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Terrorism (Community Protection) Act 2003
Act No.
Part 6--Essential Services Infrastructure Risk Management
s. 34
(a) prepare a training exercise to test the
operation of the risk management plan for
the declared essential service; and
(b) participate in that training exercise under the
5 supervision of the Chief Commissioner.
(2) The training exercise is to be conducted at a time
and place determined by the relevant Minister
after consultation with the Chief Commissioner
and the operator.
10 34. Certificate as to plan
If required by the relevant Minister, the operator
of a declared essential service must certify in
writing to the relevant Minister as to whether or
not--
15 (a) a risk management plan has been prepared
for the essential service in accordance with
this Part;
(b) the risk management plan for the essential
service has been audited in accordance with
20 this Part.
35. Duty to provide copy of plan
If required by the relevant Minister, the operator
of a declared essential service must provide the
relevant Minister with a copy of the risk
25 management plan for that essential service.
36. Minister may issue directions
If the relevant Minister believes on reasonable
grounds that the operator of a declared essential
service has failed to comply with section 29, 32,
30 33, 34 or 35, the relevant Minister may in writing
direct the operator to comply with that section
within the time specified by the relevant Minister
in the direction.
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Terrorism (Community Protection) Act 2003
Act No.
Part 6--Essential Services Infrastructure Risk Management
s. 37
37. Application to Supreme Court
(1) If the operator of a declared essential service fails
to comply with a direction of the relevant Minister
under section 36 within the time specified in the
5 direction, the relevant Minister may apply to the
Supreme Court for an order under sub-section (2)
in respect of the operator.
(2) If the Supreme Court is satisfied, on an
application under sub-section (1), that the operator
10 of a declared essential service has failed to
comply with a direction of the relevant Minister
under section 36 within the time specified in the
direction, it may make an order requiring the
operator to comply with the duty to which the
15 direction referred within the time specified in the
order.
Note: Section 18 of the Supreme Court Act 1986 gives the
Supreme Court power to close proceedings to the public in
the circumstances mentioned in section 19 of that Act.
__________________
29
551002B.I1-27/2/2003 BILL LA CIRCULATION 25-10-2004
Terrorism (Community Protection) Act 2003
Act No.
Part 7--General
s. 38
PART 7--GENERAL
38. Review
(1) The Minister must cause a review of the operation
of this Act to be undertaken and completed by
5 30 June 2006.
(2) The Minister must cause a copy of the report of
the review to be laid before each House of the
Parliament by 30 June 2006.
39. Operation of Act
10 This Act does not limit the operation of any other
law including the Emergency Management Act
1986, the Health Act 1958, the Surveillance
Devices Act 1999 and the Health (Infectious
Diseases) Regulations 2001.
15 40. Regulations
(1) The Governor in Council may make regulations
for or with respect to any matter or thing required
or permitted by this Act to be prescribed or
necessary to be prescribed to give effect to this
20 Act.
(2) Regulations made under this Act may be made so
as to apply, adopt or incorporate any matter
contained in a document formulated or published
by any person or body, whether--
25 (a) without modification or as modified by the
regulations; or
(b) as formulated or published at the time the
regulations are made or at any time before
then; or
30 (c) as formulated or published from time to
time.
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Terrorism (Community Protection) Act 2003
Act No.
Part 7--General
s. 41
41. Expiry
This Act expires on 1 December 2006.
__________________
31
551002B.I1-27/2/2003 BILL LA CIRCULATION 25-10-2004
Terrorism (Community Protection) Act 2003
Act No.
Part 8--Amendment to Freedom of Information Act 1982 and Victorian Civil
s. 42
and Administrative Tribunal Act 1998
PART 8--AMENDMENT TO FREEDOM OF INFORMATION
ACT 1982 AND VICTORIAN CIVIL AND ADMINISTRATIVE
TRIBUNAL ACT 1998
42. New section 29A inserted in Freedom of Information
5 Act 1982
See:
After section 29 of the Freedom of Information Act No.
Act 1982 insert-- 9859/1982.
Reprint No. 5
"29A. Documents affecting national security, as at
1 January
defence or international relations 2000 and
amending Act
10 (1) A document is an exempt document if Nos 74/2000,
disclosure of the document under this Act 2/2001 and
44/2001.
would, or could reasonably be expected to, LawToday:
cause damage to-- www.dms.
dpc.vic.
gov.au
(a) the security of the Commonwealth or
15 any State or Territory; or
(b) the defence of the Commonwealth; or
(c) the international relations of the
Commonwealth.
(2) For the purposes of this Act, a certificate
20 signed by a Department Head or the Chief
Commissioner of Police, certifying that a
document as described in a request would, if
it existed, be one of a kind referred to in a
specified paragraph of sub-section (1),
25 establishes that, if such a document exists, it
is an exempt document.
(3) The Ombudsman may not conduct an
investigation in respect of a certificate under
sub-section (2) or a question whether a
30 document is of a kind referred to in sub-
section (1) or a decision to sign such a
certificate.
(4) In this section a reference to a document
includes a reference to a document whether
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Terrorism (Community Protection) Act 2003
Act No.
Part 8--Amendment to Freedom of Information Act 1982 and Victorian Civil
s. 43
and Administrative Tribunal Act 1998
created before or after the commencement of
section 42 of the Terrorism (Community
Protection) Act 2003.".
43. New section 53AA inserted in Freedom of
5 Information Act 1982
After section 53 of the Freedom of Information
Act 1982 insert--
"53AA. Procedure where Tribunal determines that
there do not exist reasonable grounds for
10 claim under section 29A
(1) If, after hearing a proceeding referred to in
clause 29C(1) of Schedule 1 to the Victorian
Civil and Administrative Tribunal Act
1998, the Tribunal determines in relation to a
15 document in respect of which a certificate
under section 29A(2) is in force that there do
not exist reasonable grounds for the claim
that the document is an exempt document
under section 29A, the Tribunal must notify
20 the responsible Minister in writing of that
determination.
(2) The responsible Minister must, within
28 days after being notified under sub-
section (1), make a decision to revoke, or not
25 to revoke, the certificate.
(3) If the responsible Minister makes a decision
under sub-section (2) to revoke a
certificate--
(a) any claim made in the certificate is to
30 be taken, for the purposes of this Act, to
have been withdrawn; and
(b) the Minister must immediately inform
the applicant of the existence or non-
existence of the document to which the
35 certificate related.
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Terrorism (Community Protection) Act 2003
Act No.
Part 8--Amendment to Freedom of Information Act 1982 and Victorian Civil
s. 43
and Administrative Tribunal Act 1998
(4) If the Minister makes a decision under sub-
section (2) not to revoke a certificate, he or
she must--
(a) cause written notice of the decision to
5 be given to the applicant immediately;
and
(b) cause a copy of the notice to be laid
before each House of the Parliament
within 5 sitting days of that House after
10 the notice is given.
(5) A notice under sub-section (4) must state the
Minister's findings on any material question
of fact, the material on which those findings
are based, the reasons for the decision and
15 attach a copy of the Tribunal's notification to
the responsible Minister of its determination.
(6) The Minister is not required to include in a
notice under sub-section (4) matter that is of
such a nature that its inclusion in a document
20 of an agency would cause that document to
be an exempt document under section 28,
29A, 31(3) or 33.
(7) The Minister is not required to include in a
notice under sub-section (4) information as
25 to the existence or non-existence of a
document or the existence or non-existence
of a state of fact if that information would, if
included in a document of an agency, cause
that document to be an exempt document
30 under section 28, 29A, 31(3) or 33.
(8) Nothing in this section is to be taken to
imply that a certificate under section 29A(2)
cannot be revoked otherwise than in
accordance with this section.".
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Terrorism (Community Protection) Act 2003
Act No.
Part 8--Amendment to Freedom of Information Act 1982 and Victorian Civil
s. 44
and Administrative Tribunal Act 1998
44. Consequential amendments
(1) In section 27(1)(e) of the Freedom of
Information Act 1982, after "28" insert ", 29A".
(2) In section 27(2)(b) of the Freedom of
5 Information Act 1982, after "28" (where twice
occurring) insert ", 29A".
(3) In section 50(4) of the Freedom of Information
Act 1982, after "section 28," insert
"section 29A,".
10 (4) After section 50(5) of the Freedom of
Information Act 1982 insert--
"(5A) Where a certificate has been given in respect
of a document under section 29A(2), the
powers of the Tribunal do not extend to
15 reviewing the decision to give the certificate
and shall be limited to determining the
question whether there exist reasonable
grounds for the claim that the document is an
exempt document under section 29A.".
20 (5) In section 56(5) of the Freedom of Information
Act 1982, after "section 28" insert
", section 29A,".
45. Amendment to Victorian Civil and Administrative
Tribunal Act 1998
25 See: In Part 8 of Schedule 1 to the Victorian Civil and
Act No.
Administrative Tribunal Act 1998, after
53/1998.
Reprint No. 2 clause 29A insert--
as at 15 July
2001 and "29B. Powers of Tribunal
amending Act
Nos 68/2001, (1) This clause applies to an application to the Tribunal
96/2001,
30 for the review of a decision refusing to grant access to
36/2002,
a document in accordance with a request, where--
41/2002 and
45/2002.
(a) the document is claimed to be an exempt
LawToday:
document under section 29A of the Freedom of
www.dms.
dpc.vic. Information Act 1982; and
gov.au
35
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Terrorism (Community Protection) Act 2003
Act No.
Part 8--Amendment to Freedom of Information Act 1982 and Victorian Civil
s. 45
and Administrative Tribunal Act 1998
(b) a certificate is in force in respect of the
document under section 29A(2) of that Act.
(2) The Tribunal shall, if the applicant so requests,
determine the question whether there exist reasonable
5 grounds for the claim referred to in sub-clause (1)(a).
29C. Constitution of Tribunal for purposes of proceedings
under clause 29B
(1) If a request is made to the Tribunal in accordance with
clause 29B(2), the Tribunal must be constituted in
10 accordance with sub-clause (2) for the purposes of
any proceedings for the determination of the question
referred to in that clause.
(2) For the purposes of a proceeding referred to in sub-
clause (1) the Tribunal is to be constituted by a
15 judicial member or judicial members.
29D. Hearing of certain proceedings before the Tribunal
(1) At the hearing of a proceeding referred to in clause
29C(1), the Tribunal must hold in private the hearing
of any part of the proceeding during which--
20 (a) evidence or information is given, or a document
is produced, to the Tribunal by--
(i) an agency or an officer of an agency; or
(ii) a Department Head or a member of staff
of a Department Head; or
25 (iii) the Chief Commissioner of Police or a
member of staff of the Chief
Commissioner of Police; or
(b) a submission is made to the Tribunal by or on
behalf of an agency, Department Head or the
30 Chief Commissioner of Police in relation to the
claim that the document is an exempt
document--
and must hold the hearing of any other part of the
proceeding in public.
35 (2) Where the hearing of any part of a proceeding is held
in private in accordance with sub-clause (1), the
Tribunal--
(a) may, by order, give directions as to the persons
who may be present at that hearing; and
36
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Terrorism (Community Protection) Act 2003
Act No.
Part 8--Amendment to Freedom of Information Act 1982 and Victorian Civil
s. 45
and Administrative Tribunal Act 1998
(b) must give directions prohibiting the publication
of--
(i) any evidence or information given to the
Tribunal; or
5 (ii) the contents of any documents lodged
with, or received in evidence by, or
produced to, the Tribunal; or
(iii) any submission made to the Tribunal at
that hearing.".
37
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Terrorism (Community Protection) Act 2003
Act No.
Endnotes
ENDNOTES
By Authority. Government Printer for the State of Victoria.
38
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