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2016
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
CRIMINAL CODE AMENDMENT (HIGH RISK TERRORIST OFFENDERS) BILL
2016
REVISED EXPLANATORY MEMORANDUM
(Circulated by authority of the
Attorney-General, Senator the Honourable George Brandis QC)
THIS MEMORANDUM TAKES ACCOUNT OF AMENDMENTS MADE BY THE
SENATE TO THE BILL AS INTRODUCED AND SUPERSEDES THE EXPLANATORY
MEMORANDUM TABLED IN THE SENATE
CRIMINAL CODE AMENDMENT (HIGH RISK TERRORIST OFFENDERS) BILL
2016
GENERAL OUTLINE
1. The Criminal Code Amendment (High Risk Terrorist Offenders) Bill (the Bill) will
amend Part 5.3 of the Criminal Code to establish a scheme for the continuing detention of
high risk terrorist offenders who pose an unacceptable risk to the community at the
conclusion of their custodial sentence. The measures in this Bill incorporate an additional tool
into Australia's comprehensive national security framework and respond to the ongoing
threat terrorism poses to Australia and its people.
2. The Bill was the subject of an inquiry by the Parliamentary Joint Committee on
Intelligence and Security (the Committee), which reported on 4 November 2016. The
Committee made 24 recommendations in relation to the Bill, including that the Bill be passed
subject to the other recommendations being implemented. The Government accepted all of
the Committee's recommendations and, on 1 December 2016, the Senate agreed to
amendments implementing those recommendations that required changes to the Bill. In
addition, the Senate agreed to additional amendments to address issues arising from further
consideration of the Bill since its introduction.
FINANCIAL IMPACT STATEMENT
3. The majority of the amendments in this Bill have little or no financial impact on
Government expenditure or revenue. Section 105A.15A, which empowers the Court to make
an order for reasonable costs to be funded in certain circumstances, may have financial
implications for the Commonwealth. It is not yet possible to provide a precise estimate of the
financial implications of this amendment, as it is unclear how many applications may be
made for continuing detention orders and how many orders for reasonable costs the Court
might make. The financial implications of this amendment will be considered as part of the
implementation of the regime.
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STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016
4. This Bill is compatible with the human rights and freedoms recognised or declared in
the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011.
Overview of the Bill
5. The Bill strengthens Australia's national security laws and counter-terrorism
framework by ensuring that the Government has the means to protect the community from
the risk of terrorist acts. It does so by enabling the continued detention of terrorist offenders
serving custodial sentences who are assessed by a judge in civil proceedings to present an
unacceptable risk to the community at the time their sentences finish.
6. A majority of States and Territories, as well as international counterparts, have
enacted schemes which attempt to manage dangerous offenders through post-sentence
controls including extended supervision or in some cases continuing detention. New South
Wales and South Australia have schemes which cover both sex offenders and violent
offenders, while Queensland, Victoria, Western Australia, and the Northern Territory have
limited their schemes to only sex offenders. Tasmania and the Australian Capital Territory do
not have post-sentence detention regimes for sex offenders or violent offenders.
7. Currently, where a terrorist offender continues to pose a risk to the community at the
expiration of their custodial sentence, there are limited options to manage the risk that person
may present to the community following their release from prison. While a preventative
detention order or control order may be available in some circumstances to help manage the
risk posed by terrorist offenders following their release from prison, the obligations,
prohibitions or restrictions available under these measures and their duration are considered
insufficient to address the assessed risk of a terrorist act occurring.
8. In the current security environment where attacks can be planned and carried out with
great speed, ease and little engagement with other individuals, the risk to community safety
may be too great to permit the release of some terrorist offenders who retain a strong
motivation or intent to carry out terrorist acts within Australia.
9. Accordingly, a scheme that permits the continuing detention of terrorist offenders
assessed to pose an unacceptable risk to community safety is required. Consistent with
section 100.6 of the Criminal Code, this scheme will operate concurrently with State and
Territory regimes that provide for post-sentence supervision or detention of dangerous
offenders.
10. The Bill amends the Criminal Code. It also makes consequential amendments to the
Crimes Act 1914, the Independent National Security Legislation Monitor Act 2010, the
Intelligence Services Act 2001, the Surveillance Devices Act 2004 and the
Telecommunications (Interception and Access) Act 1979.
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Overview of measures
Schedule 1 - Amendments to the Criminal Code
11. The Bill establishes a scheme whereby the Attorney-General can apply to the
Supreme Court of a State or Territory for a continuing detention order. The effect of a
continuing detention order is to commit a 'terrorist offender' to detention in a prison for the
period the order is in force, which can be up to three years. The scheme does not authorise
detention by executive action or the detention of minors.
12. The Bill also makes amendments to Division 104 of the Criminal Code to clarify that
a control order can be applied for and obtained while an individual is in prison, but that the
controls imposed by that order would not apply until the person is released.
13. Section 105A.3 provides that a terrorist offender is a person convicted of a defined
range of terrorism-related offences who is either serving a sentence for those offences or who
is already detained under the scheme. The defined range of terrorism offences captures
international terrorist activities using explosive or lethal devices; certain foreign incursions
and recruitment offences and a 'serious Part 5.3 offence'. A serious Part 5.3 offence is an
offence against Part 5.3 of the Criminal Code (which contains terrorism-related offences)
with a maximum penalty of 7 or more years of imprisonment.
14. The Court can only make a continuing detention order if satisfied of certain matters
set out in the Bill at new subsection 105A.7(1):
i. First, the Court must be satisfied to a high degree of probability, on the basis of
admissible evidence, that the offender poses an unacceptable risk of committing a
'serious Part 5.3 offence' if released into the community. The Court can appoint one
or more suitably qualified experts with medical, psychiatric, psychological or other
expertise to assess and report on the risk posed by the offender. A copy of the expert's
report must be provided to the terrorist offender.
ii. Second, the Court must also be satisfied that there are no other less restrictive means
that would be effective in preventing the unacceptable risk.
15. The Attorney-General bears the onus of satisfying the Court of these matters.
16. Section 105A.7(5) provides that the period of detention ordered by the Court must not
exceed three years and must be limited to the period reasonably necessary to prevent the
unacceptable risk. Section 105A.7(6) provides that there is no limit on the number of
continuing detention orders that can made.
17. If a continuing detention order application has been made, and the Court is satisfied
that the offender will be released before the application for the continuing detention order has
been determined, section 105A.9 provides that the Court may order an interim detention
order committing the terrorist offender to detention for up to 28 days (or three months, if
consecutive interim detention orders are applied for and granted).
18. Sections 105A.10 and 105A.11 provide that a continuing detention order must be
reviewed by the Court annually, or sooner if the terrorist offender applies for a review and the
Court is satisfied that new facts or circumstances, or the interests of justice, justify the
review. Section 105A.12 provides that the Court can affirm, revoke or vary the continuing
detention order by shortening the period it is in force. The Court must revoke the continuing
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detention order unless satisfied that the terrorist offender continues to pose an unacceptable
risk and that there are no less restrictive measures that would be effective in preventing the
unacceptable risk. The Attorney-General bears the onus of satisfying the Court of these
matters. As with proceedings to determine an application for a continuing detention order, the
Court can appoint one or more suitably qualified experts to assess and report on the risk
posed by the offender.
19. The provisions in Subdivision E ensure procedural protections are applicable in
proceedings determining an application for a continuing detention order or an interim
detention order and in proceedings to review a continuing detention order: the Court must
apply the rules of evidence and procedure applicable to civil matters; the parties (including
the terrorist offender) can adduce evidence and make submissions; reasons for decisions must
be given; and decisions can be appealed.
20. Subsection 105A.4(1) provides that a person detained under a continuing detention
order or an interim detention order in a prison must be treated in a way that is appropriate to
their status as a person who is not serving a sentence of imprisonment. This requirement is
subject to any reasonable requirements necessary to maintain the management, security or
good order of the prison; the safe custody or welfare of the offender or prisoners; and the
safety or protection of the community.
21. Subsection 105A.4(2) provides that persons detained under a continuing detention
order or an interim detention order in a prison must not be accommodated or detained in the
same area or unit of a prison as persons serving ordinary sentences of imprisonment unless to
do so is reasonably necessary for the purposes of rehabilitation, treatment, work, education,
general socialisation or other group activities; is necessary for the security or good order of
the prison or the safe custody or welfare of the offender or prisoners or is necessary for the
safety and protection of the community. This requirement can also be departed from if the
offender elects to be accommodated or detained in an area or unit of the prison that includes
persons serving ordinary sentences of imprisonment.
22. The Attorney-General must report annually to the Parliament about the operation of
the scheme.
Schedule 2 - Consequential amendments
23. The Bill will amend the Crimes Act 1914 (the Crimes Act) to ensure that things that
have been seized under a search warrant are able to be used in an application for a continuing
detention order.
24. To enhance the oversight of the continuing detention order scheme the Bill also
amends:
the Independent National Security Legislation Monitor Act 2010 (the INSLM Act) to
require the Independent National Security Legislation Monitor to complete a review
of the continuing detention order scheme five years after the day the Bill receives
Royal Assent, and
the Intelligence Services Act 2001 (the IS Act) to require that the Committee review
the continuing detention scheme.
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25. The Bill will also amend the Surveillance Devices Act 2004 (the SD Act) and
Telecommunications (Interception and Access) Act 1979 (the TIA Act) to allow
Commonwealth, State and Territory agencies to admit information obtained under a warrant
or authorisation pursuant to the SD Act and TIA Act into evidence in proceedings relating to
continuing detention and interim detention orders. It will also allow Commonwealth, State
and Territory agencies to use, record, communicate or publish such information in connection
with this purpose. Importantly, the amendments only apply to information that has already
been lawfully obtained under the SD Act and the TIA Act. The amendments do not provide
Commonwealth, State and Territory police with a further purpose to collect covert
information.
Amendments to the Surveillance Devices Act 2004 (SD Act)
26. The SD Act regulates the use of surveillance devices by law enforcement agencies for
federal law enforcement purposes. Information obtained under a surveillance device warrant
can only be used, recorded, communicated, published or admitted into evidence for a limited
set of purposes. Information of this kind is defined as 'protected information'.
27. The SD Act maintains strict controls on dealing with protected information, including
criminal liability for persons who contravene the prohibition on disclosure of protected
information. Additional safeguards include robust record-keeping and reporting requirements
and independent oversight by the Commonwealth Ombudsman.
28. The amendments to the SD Act will enable law enforcement agencies to use,
communicate or give in evidence protected information for the purpose of a proceeding
related to a continuing detention order or interim detention order under Division 105A of the
Criminal Code. The amendments relate only to the use and disclosure of protected
information once it has been gathered in an investigation, and does not modify thresholds for
the issuing of a surveillance device warrant.
Amendments to the Telecommunications (Interception and Access) Act 1979 (TIA Act)
29. The TIA Act protects the privacy of Australians by prohibiting the interception of
communications and restricting access to the content and telecommunications data of
communications not obtained in accordance with the legislation. The TIA Act also restricts
dealing with information obtained under the Act. The Act strictly controls the purposes for
which information obtained under a telecommunications interception warrant, a stored
communications warrant or a data authorisation may be used or disclosed.
30. The prohibition on dealing with information is maintained through robust protections,
including criminal liability. The Act includes additional safeguards including the threshold
for issuing warrants, ministerial and other reporting requirements, and independent oversight
of the Commonwealth Ombudsman.
31. The amendments to the TIA Act will enable law enforcement agencies to use,
communicate or give in evidence information obtained under the Act for purposes related to
continuing detention orders and interim detention orders in Division 105A of the Criminal
Code. The amendments relate only to the use and disclosure of information once it has been
gathered in an investigation and does not modify thresholds for the issuing of a
telecommunications interception warrant, a stored communications warrant or the making of
an authorisation for access to telecommunications data.
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Human rights implications
32. This Bill engages:
the right to freedom from arbitrary detention and the right to liberty of the person in
Article 9 of the International Covenant on Civil and Political Rights (ICCPR)
the right of persons deprived of their liberty to be treated with humanity and with
respect for the inherent dignity of the human person in Article 10 of the ICCPR
the right to procedural guarantees in Article 14 of the ICCPR, and
the right to freedom from arbitrary or unlawful interference with privacy in Article 17
of the ICCPR.
Schedule 1 - Amendments to the Criminal Code Act 1995
Continuing Detention Orders and Interim Detention Orders
33. The effect of a continuing detention order or an interim detention order is to commit
the person the subject of the order to detention in a prison for the period the order is in force.
The right not to be deprived of liberty except on such grounds and in accordance with such
procedures as are established by law in Article 9(1) of the ICCPR
34. Article 9(1) of the ICCPR provides that no-one shall be deprived of their liberty
except on such grounds and in accordance with such procedures as are established by law.
Continuing detention orders and interim detention orders engage this right because they
authorise detention.
35. Detention under a continuing detention order or an interim detention order is
authorised by and operates in accordance with the procedures prescribed in Division 105A.
36. Accordingly, detention under a continuing detention order and an interim detention
order complies with the requirement in Article 9(1) that deprivation of liberty not occur
except in accordance with grounds and procedures prescribed by law.
The right to freedom from arbitrary detention in Article 9(1) of the ICCPR
37. Article 9(1) of the ICCPR provides that no-one shall be subjected to arbitrary arrest or
detention. Continuing detention orders and interim detention orders engage the right to
freedom from arbitrary detention because they authorise detention.
38. Article 9 regulates, rather than prohibits, detention--it is only 'arbitrary' detention
that is prohibited. Arbitrariness includes the elements of inappropriateness, injustice and a
lack of predictability. Detention will not be arbitrary where, in all the circumstances, it is
appropriate, justifiable, reasonable, necessary and proportionate to a legitimate end.
Detention may be arbitrary where there are less restrictive alternatives available. Preventative
detention is not arbitrary per se and may be consistent with Article 9 if it is ordered by a court
and is limited to a period during which it is justified by compelling reasons that are
reviewable by a judicial authority.
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39. The preventative detention authorised by a continuing detention order or an interim
detention order cannot be described as 'arbitrary'. The objective of the scheme (to ensure the
safety and protection of the community by providing for the continuing detention of terrorist
offenders who pose an unacceptable risk of committing serious terrorism offences) is
legitimate and consistent with the purposes of the ICCPR. By continuing to detain terrorist
offenders who pose an unacceptable risk of committing serious terrorism offences, the
scheme protects and promotes the rights of people in the community whose life, liberty and
property would be imperilled by the commission of serious terrorism offences.
40. The scheme includes numerous features designed to ensure that detention is only
authorised where it is non-arbitrary:
only a limited class of persons can be subject to the scheme and the characteristic
used to define that class (imprisonment for a terrorism-related offence) is rationally
connected with the scheme's protective purpose
only the Attorney-General, or their legal representative, can apply for a continuing
detention order or interim detention order
the terrorist offender must be provided with certain documents to enable him or her to
prepare for the Court's hearing of an application for a continuing detention order
the power to make a continuing detention order or interim detention order lies with an
independent judicial authority (the Supreme Court of the relevant State or Territory)
bound to apply the rules of evidence and procedure applicable in civil matters
the terrorist offender can adduce evidence and make submissions in court proceedings
when deciding an application for, or reviewing, a continuing detention order the Court
must have regard to a range of matters rationally connected with the level of risk
posed by the terrorist offender (for example, their degree of participation in
rehabilitation programs), including the evidence of an independent expert competent
to assess the risk posed by the terrorist offender
the threshold for making a continuing detention order is high: the Court must be
'satisfied to a high degree of probability, on the basis of admissible evidence' that the
terrorist offender poses an 'unacceptable risk' of committing a serious terrorism
offence with a maximum penalty of seven years or more imprisonment
the Court will not make a continuing detention order if other less restrictive measures
would be effective in preventing the unacceptable risk
the Attorney-General bears the onus of satisfying the Court that a continuing
detention order should be made and, if reviewed, that a continuing detention order
should be affirmed
the period of detention authorised by a continuing detention order must be limited to a
period that is reasonably necessary to prevent the unacceptable risk, and not exceed
three years
upon receiving an application for an interim detention order, the Court must hold a
hearing to determine whether to make an order
the Court must be satisfied that there are reasonable grounds for considering that a
continuing detention order will be made in relation to the terrorist offender before
making an interim detention order
8
the period of detention authorised by an interim detention order must be limited to a
period that is reasonably necessary to determine the application for a continuing
detention order and not exceed 28 days, and the total period of detention authorised
by consecutive interim detention orders must not exceed three months
detention under a continuing detention order is subject to review by the Court
annually, or sooner if the terrorist offender applies for a review and the Court is
satisfied that new facts or circumstances, or the interests of justice, justify the review
the Court must provide reasons for decisions in an application for a continuing
detention order or interim detention order, or in a review of a continuing detention
order, and these decisions can be appealed.
41. Accordingly, detention under the scheme is not arbitrary and the scheme therefore
complies with the right to freedom from arbitrary detention in Article 9(1).
Procedural guarantees under Article 14 of the ICCPR
42. Article 14(1) of the ICCPR provides that, in the determination of a person's rights and
obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a
competent, independent and impartial tribunal established by law. The continuing detention
scheme engages this right as continuing detention order proceedings involve the
determination of a terrorist offender's rights and obligations.
43. The provisions in new Subdivision E require continuing detention order proceedings
to be heard by the Supreme Court of a State or Territory and for the Court to apply the rules
of evidence and procedure applicable in civil proceedings. The terrorist offender must be
provided with certain documents (the application for a continuing detention order--
subsection 105A.5(4)--and the reasons for a decision in a continuing detention order
proceeding--paragraph 105A.16(c)) to enable him or her to prepare for and respond to court
rulings. The terrorist offender can adduce evidence, make submissions and nominate an
expert whom the Court may appoint. The terrorist offender has the benefit of provisions at
subsections 105A.7(3) and 105A.12(6), which put the onus on the Attorney-General to satisfy
the Court that the relevant threshold for the grant of a continuing detention order is met, and
provisions at paragraphs 105A.7(1)(c) and 105A.12(4)(b), that there are no less restrictive
alternatives available.
44. Subsection 105A.5(2A) provides the Attorney-General must ensure that reasonable
inquiries are made to ascertain any facts known to a Commonwealth law enforcement officer
or intelligence or security officer that would reasonably be regarded as supporting a finding
that the continuing detention order should not be made. Paragraph 105A.5(3)(aa) provides
that the application by the Attorney-General for a continuing detention order must also
include any material in the applicant's possession and any statement of facts that the
applicant is aware of that would reasonably be regarded as supporting a finding that the order
should not be made. These requirements will also apply when a continuing detention order is
periodically reviewed.
45. These measures ensure that the terrorist offender and the Court are provided with all
the material that may be relevant in the determination of a continuing detention order
application. Accordingly, the terrorist offender will be given the opportunity to put forward
their case in light of all the available material that is relevant to the proceeding.
9
46. If the Court appoints an expert under subsection 105A.6(3), the terrorist offender is
required to attend the assessment conducted by the expert for the purposes of determining the
risk of the offender committing a serious Part 5.3 offence if the offender is released into the
community. While the offender is not required to participate in the assessment, the Court
must have regard to the level of the offender's participation in the assessment.
47. In order to avoid the terrorist offender having to decide between participating in the
assessment but potentially disclosing self-incriminating information, and not participating in
the assessment at all, subsection 105A.6(5A) guarantees that the terrorist offender will be
protected from self-incrimination. The answers or information provided by the terrorist
offender during an assessment session will not be admissible in evidence against the offender
in subsequent criminal or other civil proceedings. Subsection 105A.6(6) provides that the
Court must ensure the terrorist offender is made aware of the abovementioned facts.
48. Under subsection 105A.5(4), the Attorney-General is required to provide a copy of
the application for a continuing detention order to the terrorist offender within two business
days after the application is made. However, subsection 105A.5(5) provides that the
Attorney-General is not required to provide the terrorist offender information in the
application if the Attorney-General is likely to take certain actions under the National
Security Information (Criminal and Civil Proceedings) Act 2004, or seek an order from the
Court limiting or preventing its disclosure. Subsection 105A.5(6) provides that the offender
must be given a complete copy of the application within two business days of the
Attorney-General's decision or the Court order, and in any case, within a reasonable period
before the preliminary hearing.
49. The terrorist offender also has the benefit of the power of the Court to make certain
orders if, due to circumstances beyond their control, the offender is unable to engage a legal
representative in relation to a continuing detention order proceeding. Under section
105A.15A, the Court may make either or both of the following orders:
stay the proceeding for such period and subject to such conditions as the Court thinks
fit,
an order requiring the Commonwealth to bear, in accordance with the regulations (if
any), all or part of the reasonable costs and expenses of the offender's legal
representation in the proceeding.
50. The gravity of a continuing detention order on a terrorist offender, being the
deprivation of their liberty, requires strong safeguards to ensure procedural fairness is
guaranteed. Providing for legal representation for a terrorist offender who is the subject of
continuing detention order proceedings is important to ensure that the terrorist offender may
respond effectively to the matters raised by the Commonwealth. Providing for the staying of
a proceeding, or requiring the Commonwealth to bear all or part of the costs of the offender's
legal representation where the terrorist offender, through no fault of their own, has been
unable to obtain legal representation, enhances the terrorist offender's right to a fair hearing.
51. Section 105A.16 requires that if a Court makes a continuing detention order decision,
the Court must state the reason for its decision and cause those reasons to be entered in the
records of the Court--this accords with the requirement in Article 14(1) that any judgement
rendered in a suit at law shall be made public.
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52. Consequently, subject to the limitations permitted under Article 14(1), the provisions
of the Bill protect the rights of terrorist offenders to a fair and public hearing by a competent,
independent and impartial tribunal established by law.
53. Articles 14(2) and (3) set out a number of procedural protections that must be
observed in the determination of a criminal charge. These protections are not relevant to
continuing detention order proceedings, which do not involve the determination of a criminal
charge, being civil, rather than criminal, in nature.
54. Article 14(7) provides that no one shall be liable to be tried or punished again for an
offence for which he or she has already been finally convicted in accordance with the law and
penal procedure of the country.
55. This right is not engaged by the Bill as the continued detention of a terrorist offender
under the scheme does not constitute additional punishment for their prior offending - the
continued detention is protective rather than punitive or retributive.
56. As well as being defined explicitly in Subdivision A, the scheme's protective purpose
is reflected in numerous features of the scheme including the grounds on which a continuing
detention order may be made or affirmed; the matters to which the Court must have regard
when making or reviewing a continuing detention order; the requirement to consider less
restrictive measures and the requirement that the period of detention authorised by a
continuing detention order be limited to a period that is reasonably necessary to prevent the
unacceptable risk.
57. The fact that the effect of a continuing detention order or interim detention order is to
commit the terrorist offender to detention in a prison does not render the detention punitive.
The Bill nominates these facilities as the place of detention because they have the
infrastructure necessary to appropriately manage terrorist offenders who pose an
unacceptable risk of committing serious terrorism offence if released into the community.
Further, the scheme provides that, subject to certain exceptions (related to the management of
the prison, the safety of others and the offender's preferences), terrorist offenders detained in
a prison under a continuing detention order or interim detention order must be treated in a
way that is appropriate to their status as persons who are not serving a sentence of
imprisonment and must not be accommodated or detained in the same area or unit of a prison
as persons serving sentences of imprisonment.
58. Accordingly, the detention scheme does not further punish those convicted of
terrorism offences and Article 14(7) of the ICCPR is not engaged.
Prohibition on the retrospective operation of criminal laws in Article 15 of the ICCPR
59. Article 15 of the ICCPR provides that no one shall be held guilty of any criminal
offence on account of any act or omission which did not constitute a criminal offence, under
national or international law, at the time it was committed. The article also prohibits the
imposition of a heavier penalty than the one that was applicable at the time when the criminal
offence was committed.
60. The scheme is applicable to terrorist offenders, defined to include persons serving
sentences of imprisonment for terrorism-related offences. The scheme will therefore apply to
persons convicted of terrorism offences prior to the enactment of the scheme.
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61. As outlined in the above discussion of Article 14, detention under a continuing
detention order or interim detention order does not constitute punishment. The continued
detention of terrorist offenders does not, therefore, constitute a prohibited form of
retrospective punishment or the imposition of a penalty for an offence heavier than that which
was applicable at the time the offence was committed.
Conditions of detention
62. The Bill at subsection 105A.4(1) provides that, subject to certain exceptions, a
terrorist offender detained in a prison under a continuing detention order or an interim
detention order must be 'treated in a way that is appropriate to his or her status as a person
who is not serving a sentence of imprisonment'. This standard of treatment is mandated
'subject to any reasonable requirements necessary to maintain' 'the management, security or
good order of the prison', the 'safe custody or welfare of the offender or any prisoners' and
'the safety or protection of the community'.
63. Subsection 105A.4(2) also requires that the terrorist offender be accommodated or
detained in a different area or unit of the prison from persons serving sentences of
imprisonment unless the contrary 'is reasonably necessary for the purposes of rehabilitation,
treatment, work, education, general socialisation or other group activities', 'is necessary for
the security or good order of the prison or the safe custody or welfare of the offender or
prisoners', 'is necessary for the safety and protection of the community' or 'the offender
elects to be so accommodated or detained'.
The right to be treated with humanity and dignity in Article 10 of the ICCPR
64. Article 10(1) of the ICCPR provides that all persons deprived of their liberty shall be
treated with humanity and with respect for the inherent dignity of the human person. The
continuing detention scheme may be considered to engage this obligation as it involves
detention.
65. Article 10(2)(a) provides that 'accused persons' must, save in exceptional
circumstances, be segregated from convicted persons and be subject to separate treatment
appropriate to their status as unconvicted persons. These obligations do not apply to the
continuing detention scheme directly as the scheme does not involve the detention of
'accused persons'. The grounds for detention under a continuing detention order or interim
detention order are not connected with the laying or determination of a criminal charge.
66. By mandating appropriate standards of treatment and accommodation arrangements,
the Bill promotes the rights of terrorist offenders detained under the scheme to be treated with
humanity and respect for the inherent dignity of the human person. While the Bill permits
deviation from these standards, it does so only where necessary to protect the safety or rights
of others, or to reflect the terrorist offender's wishes. To the extent that the scheme permits
limitations on the rights of terrorist offenders under Article 10(1) the limitations are
reasonable, necessary and proportionate to achieve legitimate objectives of the scheme.
Obligation to attend assessment
67. When hearing an application for, or reviewing, a continuing detention order the Court
has the power to appoint one or more experts to assess the risk of the terrorist offender
committing a serious Part 5.3 offence if released into the community. Where an expert is
appointed, the offender is required to attend the assessment. The Court is required to explain
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to the offender the effect of this requirement, and in deciding whether to make or affirm a
continuing detention order, the Court will have regard to the expert's report and the level of
the offender's participation in the assessment by the expert.
The right to be free from arbitrary or unlawful interference with privacy in Article 17(1) of
the ICCPR
68. Article 17(1) provides that no one shall be subjected to arbitrary or unlawful
interference with his or her privacy.
69. The requirement that the terrorist offender attend an assessment does not engage this
right. The terrorist offender is under no obligation to participate in the assessment or to
disclose any private information. The fact that the Court must consider the level of the
terrorist offender's participation in the expert's assessment does not create a de facto
obligation to participate. Participation in the expert's assessment is not the only means by
which the terrorist offender can seek to influence the outcome of the Court's consideration of
an application for, or review of, a continuing detention order; the terrorist offender can
adduce his or her own evidence and make submissions.
70. The requirement that the terrorist offender attend an assessment with the expert does
not engage Article 17(1).
Schedule 2 - Consequential amendments
71. The Bill amends
the Crimes Act to ensure that things that have been seized under a search warrant are
able to be used in an application for a continuing detention order
the INSLM Act to require a review of the continuing detention order scheme within
five years
the IS Act to require a review of the continuing detention order scheme within six
years
the SD Act to permit the use of 'protected information' (defined in section 44 of the
SD Act to include information obtained from the use of a surveillance device) in
continuing detention order proceedings, and in appeals from such proceedings
Chapter 3 of the TIA Act to enable authorised persons to deal with information
obtained under a stored communications warrant for purposes relating to a continuing
detention order, and
Chapters 2 and 4 of the TIA Act to allow Commonwealth, State and Territory
agencies to admit evidence obtained under telecommunications warrants, stored
communications warrants and data authorisations in continuing detention order
proceedings, and to use, record or communicate information in connection with that
purpose.
The right to life and security of the person in Articles 6 and 9 of the ICCPR
72. The right to security of the person in Article 9 of the ICCPR requires states to provide
reasonable and appropriate measures to protect a person's physical security. The right to life
also places a positive obligation on states to protect individuals from unwarranted actions by
13
private persons, such as acts of terrorism. The obligation to protect life requires the state to
take preventative operational measures to protect individuals whose safety may be
compromised in particular circumstances, such as by a terrorist act. This includes enhancing
the capabilities of law enforcement agencies to respond to a heightened terrorist threat.
73. The Bill promotes the right to life and the right to security of the person by enhancing
the capabilities of law enforcement agencies to respond to a heightened terrorist threat. The
amendments to the SD and TIA Acts enable pertinent information to be used and disclosed in
proceedings against persons who may pose a significant terrorist threat. This allows both the
agencies and the Court to make a more informed assessment on the risks to public safety that
a high risk terrorist offender may pose.
The right to be free from arbitrary or unlawful interference with privacy in Article 17(1) of
the ICCPR
74. Article 17 of the ICCPR prohibits arbitrary or unlawful interference with an
individual's privacy, family, home or correspondence. This right may be subject to
permissible limitations where those limitations are provided by law and non-arbitrary. In
order for limitations not to be arbitrary, they must be aimed at a legitimate objective and be
reasonable, necessary and proportionate to that objective.
75. The amendments in Schedule 2 engage Article 17(1) because they permit interference
with the privacy of those whose information (that has been previously obtained under a
surveillance device or under telecommunications interception warrants, stored
communications warrants and data authorisations) can be further used for the purposes of
continuing detention and interim detention orders.
76. To justify a limitation of human rights, a legitimate objective must address a pressing
or substantial concern and not simply seek an outcome that is desirable or convenient. The
amendments to the SD and TIA Acts are intended to make available pertinent evidence where
a terrorist offender may pose an unacceptable risk of committing a serious terrorism offence
if released into the community.
77. Terrorism is a significant threat to national security and public safety. Politically
motivated violent acts can indiscriminately threaten the lives and physical safety of
Australian citizens. This can perpetuate a climate of fear which is socially divisive,
threatening the cohesiveness of Australian society.
78. Proceedings under the new continuing detention order and interim detention order
provisions are intended to mitigate the threat of terrorism. Information obtained from a
surveillance device or under the TIA Act can be important in applications for such orders and
the amendments ensure that covertly collected information can be used in continuing
detention order and interim detention order proceedings.
79. Significant safeguards apply to dealing with this information and persons who use
information unlawfully are subject to criminal liability.
80. In light of the risk posed by terrorism, interference with the privacy of persons against
whom these orders are made is legitimate and proportionate to the objective of protecting the
broader community from terrorism.
14
Conclusion
81. While the Bill engages a range of human rights, it is compatible with human rights
because it promotes some rights, and to the extent that it limits some rights, those limitations
are reasonable, necessary and proportionate in achieving a legitimate objective.
15
NOTES ON CLAUSES
Clause 1: Short title
83. Clause 1 provides for the short title of the Act to be the Criminal Code Amendment
(High Risk Terrorist Offenders) Act 2016.
Clause 2: Commencement
84. This clause provides for the commencement of each provision in the Bill, as set out in
the table.
85. Table item 1 of the table in subclause 2(1) provides that sections 1 to 3 will
commence on the day the Act receives Royal Assent.
86. Table items 2 and 3 provide that Schedule 1 and Part 1 of Schedule 2 will commence
on either a day to be fixed by Proclamation, or within 6 months of the day the Act receives
Royal Assent. This delayed commencement is to provide sufficient time for administrative
arrangements to be put in place to ensure the new regime can work effectively.
87. Table item 4 provides that Part 2, Division 1 of Schedule 2 will commence on either,
a day to be fixed by Proclamation, or within 6 months of the day the Act receives Royal
Assent. However, if Schedule 9 of the Counter-Terrorism Legislation Amendment Bill
(No. 1) 2016 (the CTLA Bill) commences at or before that time, the provisions covered by
this table item do not commence at all. Schedule 9 of the CTLA Bill amends the
Telecommunications (Interception and Access) Act 1979 to provide Commonwealth, State
and Territory interception agencies with the ability to monitor the compliance of a person
subject to a control order.
88. Table item 5 applies to the occurrence in which Part 2, Division 2 of Schedule 2
commences immediately before the commencement of Schedule 9 of the CTLA Bill.
However, the provisions covered by this table item will not commence at all if Schedule 9 of
the CTLA Bill commences on or before the commencement of the provisions covered by
table item 2.
89. Table item 6 provides that Part 2, Division 3 of Schedule 2 will commence on either a
day to be fixed by Proclamation, or within 6 months of the day the Act receives Royal
Assent. However, if Schedule 9 of the CTLA Bill commences at or before that time, the
provisions covered by this table item do not commence at all.
90. Table item 7 provides that Part 2, Division 4 of Schedule 2 will commence at the later
of the commencement of the provisions covered by table item 2 or the commencement of
Schedule 9 to the CTLA Bill. However, the provisions do not commence if Schedule 9 of the
CTLA Bill does not commence at all.
Clause 3: Schedules
91. Legislation that is specified in a Schedule to this Act is amended as set out in the
applicable items in the Schedule. Any other item in a Schedule to this Act has effect
according to its terms.
16
Schedule 1 - Criminal Code Act 1995
Criminal Code
Overview
92. The Criminal Code and Crimes Act 1914 establish a range of mechanisms available to
law enforcement agencies to ensure the safety of the community. However, Australian law
does not currently provide adequate protection from the possible unacceptable risk posed by a
high risk terrorist offender at the conclusion of their sentence. While there are State and
Territory schemes that provide for the continuing detention of high risk sexual or violent
offenders, these schemes do not provide for nationally consistent preventative detention of
high risk terrorist offenders.
93. The amendments create a nationally consistent preventative scheme which will ensure
the safety and protection of the community by providing for the continuing detention of
terrorist offenders who are deemed by a court to pose an unacceptable risk of committing a
serious offence under Part 5.3 of the Criminal Code.
94. The scheme is modelled on the existing State and Territory sexual or violent offender
preventative detention schemes.
Object
95. The object of the scheme is preventative in nature and seeks to ensure the safety and
protection of the community by providing for the continuing detention of terrorist offenders
serving custodial sentences who pose an unacceptable risk of committing a serious terrorist
offence if released into the community upon the expiry of their sentence.
Detention orders
96. The Bill provides for the Supreme Court of a State or Territory to make two types of
detention orders against a terrorist offender, as defined in the Bill: a continuing detention
order, and an interim detention order.
97. A terrorist offender is defined at section 105A.3 as a person convicted of certain
terrorist offences against the Criminal Code and who is serving a sentence of imprisonment
for the offence, or is subject to either a continuing detention order or an interim detention
order.
98. The effect of a continuing detention order is to commit the terrorist offender to
detention for the period that order is in force. An order may be made for no more than three
years. However, there is no limit to the number of orders that may be made against a terrorist
offender.
99. The Court may only make a continuing detention order under section 105A.7 if it is
satisfied to a high degree of probability, on the basis of admissible evidence, that the offender
poses an unacceptable risk of committing a serious Part 5.3 offence if they were released into
the community.
100. There are several matters that the Court must have regard to in making a continuing
detention order (subsection 105A.8(1)).
17
101. In the event that a terrorist offender's sentence of imprisonment or existing continuing
detention order will end before a continuing detention order application has been determined,
the Court may issue an interim detention order under subsection 105A.9(2).
102. The Court may only make an interim detention order if it is satisfied that there are
reasonable grounds for considering that a continuing detention order will be made in relation
to the terrorist offender. The order detains the terrorist offender in custody for no longer than
28 days. While multiple interim detention orders may be made, the total period of all orders
must not exceed three months.
Continuing detention order proceedings
103. The Attorney-General, or a legal representative of the Attorney-General, may apply to
the Supreme Court of a State or Territory for a continuing detention order in relation to a
terrorist offender during the last twelve months of their sentence. Once an application is made
the following occurs:
The application must be personally provided to the terrorist offender within two
business days (subsection 105A.5(4) and section 105A.15).
A preliminary hearing must be held within 28 days after the application is given to the
offender (subsection 105A.6(2)). At that preliminary hearing, or at any point during
the proceedings, the Court may decide to appoint one or more relevant experts, if the
Court believes that doing so is likely to materially assist it in determining whether to
make a continuing detention order (subsection 105A.6(3)).
If the Court will not make a decision on whether to make a continuing detention order
before the terrorist offender's sentence or existing continuing detention order has
expired, the applicant may apply for, and the Court may grant, an interim detention
order (section 105A.9).
A continuing detention order must specify the period during which it is in force, but it
must be no longer than three years (subsections 105A.7(4) and 105A.7(5)). However,
a court may make successive continuing detention orders (subsection105A.7(6)).
Safeguards
104. The Bill contains important safeguards. These include:
A continuing detention order may only be made against a terrorist offender who is at
least 18 years old at the expiry of their sentence (paragraph 105A.3(1)(c)).
The application for a continuing detention order, or review of a continuing detention
order, must include any information the Attorney-General is aware of that would
reasonably be regarded as supporting a finding that an order should not be made
(paragraph 105A.5(3)(aa) and subsection 105A.12(6A).
The making of a continuing detention order is a judicial process subject to civil rules
of evidence and procedure (section 105A.7, section 105A.8 and section 105A.13).
The Court must be satisfied that there is no other less restrictive measure that would
be effective in preventing the unacceptable risk before making a continuing detention
order (paragraph 105A.7(1)(c)).
18
A continuing detention order is appealable as of right and with leave (section
105A.17).
A continuing detention order is subject to review, and the Attorney-General must
apply for review within 12 months after the order began to be in force, or the most
recent review ended (section 105A.10).
A terrorist offender, or his or her legal representative, can apply for review of a
continuing detention order (section 105A.11).
A continuing detention order remains in force for a maximum of three years
(subsection 105A.7(5)).
The Court may, at any point during continuing detention order proceedings, appoint
one or more independent experts whose opinion it must have regard to (section
105A.6 and section 105A.8).
Any responses to questions or information given by the terrorist offender to an expert
during an assessment will not be admissible in evidence against the offender in
criminal and other civil proceedings (subsection 105A.6(5A).
A terrorist offender must not be accommodated or detained in the same area or unit of
a prison as persons serving ordinary sentences of imprisonment, except in certain
circumstances (section 105A.4).
A terrorist offender must be personally served with an application for a continuing
detention order (subsection 105A.5(4) and section 105A.15).
The Court may stay the proceeding or require the Commonwealth to bear all or part of
the reasonable cost of the offender's legal representation in the proceeding if a
terrorist offender, due to circumstances beyond their control, is unable to obtain legal
representation (section 105A.15A).
A sentencing court must warn the offender that an application for a continuing
detention order could be considered when sentencing an offender convicted of any of
the offences to which the continuing detention scheme applies (section 105A.23).
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Items 1A & 1B - At the end of section 72.3 of the Criminal Code and at the end of
section 100.1 of the Criminal Code
105. Item 1A inserts a note at the end of section 72.3 of the Criminal Code (offences
relating to international terrorist activities using explosive or lethal devices) advising that a
court sentencing a person who has been convicted of an offence against this section must
warn the person about continuing detention orders in accordance with section 105A.23.
106. Item 1B inserts a note at the end of section 100.1 of the Criminal Code (definitions
for Part 5.3 -Terrorism) advising that a court sentencing a person who has been convicted of
an offence against this Part, the maximum penalty of which is 7 or more years imprisonment,
must warn the person about continuing detention orders in accordance with new section
105A.23.
Items 1C to 1Q - Division 104
107. Items 1C to 1Q amend Division 104 of the Criminal Code to make explicit that a
control order can be applied for and obtained while an individual is in prison, but that the
controls imposed by the order would not apply until the person is released.
108. Item 1C repeals and replaces subsection 104.2(5) to make it clear that a senior AFP
member may seek the Attorney-General's consent to request an interim control order in
relation to a person even if the person is detained in custody. The new note in subsection
104.2(5) advises that an interim control order in relation to a person who is detained in
custody does not begin to be in force until the person is released from custody, and references
new paragraph 104.5(1)(d).
109. Item 1D repeals and replaces paragraph 104.5(1)(d) so that if the issuing court makes
an interim control order in relation to a person who is detained in custody, the order must
state that it does not begin to be in force until the person is released from custody.
110. Item 1E inserts paragraph 104.5(1B)(aa). This new paragraph ensures that if the
issuing court makes an interim control order in relation to a person who is detained in
custody, when specifying a day for the purposes of paragraph 104.5(1)(e) (a day on which the
person must attend court for the court to confirm, declare void or revoke the interim control
order), the issuing court must take into account any other matter relating to the person's
detention that the court considers relevant.
111. Item 1F inserts an avoidance of doubt provision at subsection 104.5(1C). Subsection
104.5(1C) clarifies that if the person is detained in custody, the person has a right to attend
court on the day specified for the purposes of paragraph 104.5(1)(e).
112. Item 1G inserts an avoidance of doubt provision and note at subsection 104.5(2AA).
Subsection 104.5(2AA) makes it clear that if a control order is in force in relation to a person,
the control order does not cease to be in force merely because the person is detained in
custody. If a person in the community is subject to a control order, and the person
contravenes that order and is subsequently taken into custody, the relevant obligations,
prohibitions and restrictions will still apply while the person is detained. The note clarifies
that if a person is detained in custody (before a control order has been made in relation to that
person), and a control order is then made in relation to the person, the control order does not
begin to be in force until the person is released from custody (see paragraph 104.5(1)(d)).
20
113. Item 1H adds a note at the end of subsections 104.10(3) and 104.12(1) that refers to
section 104.28B for personal service of documents on a person detained in custody.
Subsection 104.10(3) provides that if an urgent interim control order ceases to be in force, the
senior AFP member must cause the annotated order, indicating that it has ceased to be in
force, to be served personally on the person. Subsection 104.12(1) provides that as soon as
practicable after an interim control order is made an AFP member must, amongst other
things, serve the order personally on the person.
114. Item 1J inserts subsection 104.12(3A). Subsection 104.12(3A) provides that
paragraphs (1)(b) and (c) do not apply if the person in relation to whom the interim control
order has been made is detained in custody and it is impracticable for the AFP member to
comply with those paragraphs. Paragraph 104.12(1)(b) places an obligation on the AFP
member to inform the person of certain matters when they are serving the order personally on
the offender, for example the effect of the order and the period of the order (see
subparagraphs 104.12(1)(b)(i) and (ii)). Paragraph 104.12(1)(c) requires the AFP to also
ensure that the person understands the information provided under paragraph 104.12(1)(b)
(taking into account the person's age, language skills, mental capacity and any other relevant
factor). The exception under new subsection 104.12(3A) is necessary to ensure that the
interim control order is not affected in circumstances where it is impracticable for the AFP
member to comply with their obligations under paragraphs 104.12(1)(b) and (c).
Circumstances where it may be impracticable for the AFP member to comply with these
obligations include where the requirements of a person's detention do not permit it or the
person is unwilling to meet with the AFP member.
115. Item 1K adds a note at the end of subsections 104.12A(2) and (4) and 104.17(1)
advising that section 104.28B should be referred to for personal service of documents on a
person detained in custody. Paragraph 104.12A(2)(a) provides that if the senior AFP member
elects to confirm a control order the AFP member must serve documents and information
referred to in subparagraphs 104.12A(2)(a)(i)-(iii) personally on the person in relation to
whom the order is made. Subsection 104.12A(4) provides that if the senior AFP member
elects not to confirm the order that is in force, then the order immediately ceases to be in
force and an AFP member must cause the annotated order, indicating that it has ceased to be
in force, to be served personally on the person. Subsection 104.17(1) provides that as soon as
practicable after an interim control order is declared void, revoked or confirmed, an AFP
member must serve the declaration, revocation or the confirmed control order personally on
the person.
116. Item 1L inserts subsection 104.17(2A). Subsection 104.17(2A) provides that
paragraphs (1)(b) and (c) do not apply if the person in relation to whom the interim control
order has been declared void, revoked or confirmed is detained in custody and it is
impracticable for the AFP member to comply with those paragraphs.
117. Item 1M adds a note at the end of subsections 104.20(3) and 104.26(1) advising that
section 104.28B should be referred to for personal service of documents on a person detained
in custody. Subsection 104.20(3) provides that an AFP member must serve a revocation or
variation personally on the person as soon as practicable after a confirmed control order is
revoked or varied. Subsection 104.26(1) provides that as soon as practicable after a control
order is varied under section 104.24, an AFP member must serve the varied order personally
on the person.
21
118. Item 1N makes a minor technical amendment to subsection 104.26(3) so that the
subsection will correctly refer to "control order" instead of "interim control order".
119. Item 1P inserts subsection 104.26(3A). Subsection 104.26(3A) provides that
paragraphs (1)(b), (c) and (d) do not apply if the person in relation to whom the control order
has been made is detained in custody and it is impracticable for the AFP member to comply
with those paragraphs. Paragraphs 104.26(1)(b) and (c) place an obligation on the AFP
member to inform the person that the order has been varied to impose additional obligations,
prohibitions and restrictions and other certain matters when they serve the varied order
personally on the person. Paragraph 104.26(1)(d) requires the AFP to also ensure that the
person understands the information provided under paragraph 104.26(1)(C) (taking into
account the person's age, language skills, mental capacity and any other relevant factor).
120. Item 1Q inserts section 104.28B - Giving documents to persons detained in custody.
Subsection 104.28B(1) provides that a document that is required under Division 104 to be
given to a person (the prisoner) personally who is detained in custody at a prison, is taken to
have been given to the prisoner at the time referred to in paragraph 104.28B(3)(b), if the
document is given to the following person (the recipient):
legal representative of the prisoner;
if the prisoner does not have a legal representative--the chief executive officer
(however described) of the prison, or a delegate of the chief executive officer.
121. The note at subsection 104.28B(1) advises that the obligation to inform the prisoner of
matters referred to in paragraphs 104.12(1)(b), 104.17(1)(b) and 104.26(1)(b) and (c) might
not apply if it is impracticable for an AFP member to comply with the obligation. The note
then refers to new subsections 104.12(3A), 104.17(2A) and 104.26(3A).
122. Subsection 104.28B(2) requires the recipient to, as soon as practicable, give the
document to the prisoner personally.
123. Subsection 104.28B(3) stipulates that once the recipient has done so, he or she must
notify the Court and the person who gave the recipient the document in writing that the
document has been given to the prisoner and the day the document was so given.
Item 1 - Division 105A
124. Item 1 inserts Division 105A into the Criminal Code. This item provides for the new
continuing detention order scheme, allowing for the preventative detention of terrorist
offenders who pose an unacceptable risk to the safety and protection of the community at the
conclusion of their sentence.
Subdivision A - Object and definitions
Section 105A.1 - Object
125. Section 105A.1 sets out the object of the Division as ensuring the safety and
protection of the community. This is to be achieved through the continuing detention of
terrorist offenders who pose an unacceptable risk of committing serious Part 5.3 offences if
released into the community. A serious Part 5.3 offence is defined under section 105A.2.
22
Section 105A.2 - Definitions
126. Section 105A.2 provides the definitions for the Division.
Section 105A.2 - definition of 'Commonwealth law enforcement officer'
127. This definition refers to the existing definition of a Commonwealth law enforcement
officer in Part 7.8. This definition is relevant in the context of section 105A.5 and section
105A.12.
Section 105A.2 - definition of 'continuing detention order'
128. This definition relates to subsection 105A.7(1) which establishes that a Supreme
Court of a State or Territory may make a written continuing detention order if certain
thresholds are met.
Section 105A.2 - definition of 'continuing detention order decision'
129. This definition includes three separate decisions:
a decision by the Court on the application for either a continuing detention order or an
interim detention order
a decision to affirm, revoke or vary a continuing detention order upon review, or
a decision by the Court under section 105A.15A to make certain orders if the offender
is unable to obtain legal representation.
This definition is relevant in the context of Subdivision E (provisions relating to continuing
detention order proceedings). The Court must provide reasons for making a continuing
detention order decision. A continuing detention order decision may also be appealed.
Section 105A.2 - definition of 'continuing detention order proceeding'
130. A continuing detention order proceeding means any proceeding under Subdivision C
or D. The definition includes all proceedings relating to a continuing detention order,
including a preliminary hearing under section 105A.6, a hearing for a continuing detention
order or an interim detention order, a proceeding to determine whether to grant a review
under section 105A.11, and a review hearing.
131. This definition is relevant in the context of Subdivision E, which requires the civil
evidence and procedure rules to apply to a continuing detention order proceeding.
Section 105A.2 - definition of 'intelligence or security officer'
132. This definition refers to the existing definition of an intelligence or security officer in
Part 10.6. This definition is relevant in the context of section 105A.5 and section 105A.12.
Section 105A.2 - definition of 'interim detention order'
133. This definition refers to subsection 105A.9(2) which provides that the Court may
make a written interim detention order if certain thresholds are met.
23
Section 105A.2 - definition of 'prison'
134. This definition is required because subsection 105A.3(2) provides that a person
subject to a continuing detention order or interim detention order must be detained in prison
for the period of the order. The definition of prison is broad to provide flexibility to the States
and Territories in the types of facilities in which the person will be housed.
Section 105A.2 - definition of 'relevant expert'
135. This definition provides guidance as to who the Court may appoint as a relevant
expert under section 105A.6 or section 105A.12. Importantly, the expert must be competent
to assess the risk of a terrorist offender committing a serious offence under Part 5.3 of the
Criminal Code.
136. Paragraphs (a) to (c) allow for registered medical practitioners, psychiatrists and
psychologists to be appointed as experts. Paragraph (d) provides the Court with the flexibility
to appoint 'any other expert' provided they are competent to assess the risk of a terrorist
offender committing a serious offence under Part 5.3 of the Criminal Code. An example of an
expert that could fall under paragraph (d) is a criminologist who:
has a relevant PhD level qualification
has demonstrated understanding of the use and methodology of risk assessment tools
has experience with or knowledge of individuals radicalised to violent extremism, or
has demonstrated understanding of criminal recidivism.
Paragraph (d) could also include individuals with qualifications from other related fields.
Section 105A.2 - definition of 'serious Part 5.3 offence'
137. A 'serious Part 5.3 offence' is an offence against Part 5.3 of the Criminal Code that
carries a maximum penalty of 7 or more years of imprisonment. The definition therefore
excludes less serious offences in Part 5.3 including associating with terrorist organisations
(under section 102.8) and contravening a control order (under section 104.27).
Section 105A.2 - definition of 'terrorist offender'
138. This definition relates to subsection 105A.3(1) which sets out to whom a continuing
detention order may apply.
Subdivision B - Continuing detention orders
Section 105A.3 - Who a continuing detention order may apply to and effect of an order
139. Subsection 105A.3(1) provides that a continuing detention order can only be made
against a terrorist offender. A terrorist offender is a person convicted of the following
offences against:
Subdivision A of Division 72 of the Criminal Code (international terrorist activities
using explosive or lethal devices)
24
Part 5.3 of the Criminal Code (terrorism) which carries a maximum penalty of 7 or
more years imprisonment (a serious Part 5.3 offence)
Part 5.5 of the Criminal Code (foreign incursions and recruitment), except offences
against subsection 119.7(2) or (3) (publishing recruitment advertisements) (paragraph
105A.3(1)(a)), or
the repealed Crimes (Foreign Incursions and Recruitment) Act 1978, except an
offence against paragraph 9(1)(b) or (c) of that Act (publishing recruitment
advertisements).
140. The person must also be detained in custody and serving a sentence of imprisonment
for one of the aforementioned offences, or have a continuing detention order or interim
detention order in force against them (paragraph 105A.3(1)(b)).
141. The offences listed in paragraph 105A.3(1)(a) broadly reflect the definition of
'terrorism offence' at subsection 3(1) of the Crimes Act 1914. Although offences under the
Charter of the United Nations Act 1945 are included in the definition of terrorism offence
under the Crimes Act, it is not appropriate to include these offences for the purpose of the
scheme on the basis that the most serious financing terrorism offences, carrying a maximum
penalty of life imprisonment, are already covered under Division 103 of the Criminal Code.
To ensure that the scheme is appropriately targeted, the scheme applies to Part 5.3 (terrorism)
offences which carry a maximum penalty of 7 or more years. Therefore a person convicted
and serving a sentence of imprisonment for the offence of associating with a terrorist
organisation (which carries a maximum penalty of only 3 years imprisonment) will not be
subject to the scheme.
142. Subsection 105A.3(2) provides that the effect of a continuing detention order is to
commit a terrorist offender to detention in a prison, as defined in section 105A.2, for the
period of the order. Note 3 clarifies that a terrorist offender may not be eligible to be released
on bail or parole while a continuing detention order is in force. Section 105A.24 sets out
when a person may be released on bail or parole and when they may apply for bail or parole.
Section 105A.4 - Treatment of a terrorist offender in a prison under a continuing detention
order
143. Section 105A.4 provides that a terrorist offender subject to a continuing detention
order must be treated in a way appropriate to their status as a person who is not serving a
sentence of imprisonment. This includes not accommodating or detaining them in the same
area or unit of a prison as persons serving sentences of imprisonment. However, exceptions
are permitted to this requirement on the basis of the management, security or good order of
the prison; the safe custody or welfare of the terrorist offender or any prisoners; the safety
and protection of the community; the purposes of rehabilitation, treatment, work, education,
general socialisation or other group activities; or at the offender's election. This section does
not apply to those who are still serving a sentence of imprisonment.
25
Subdivision C - Making a continuing detention order
Section 105A.5 - Applying for a continuing detention order
144. Subsection 105A.5(1) provides that the applicant for a continuing detention order is
the Attorney-General, or a legal representative of the Attorney-General, and that a State or
Territory Supreme Court has jurisdiction to hear an application for a continuing detention
order.
145. Subsection 105A.5(2) stipulates the relevant time period for applying for a continuing
detention order. If the terrorist offender is serving a sentence of imprisonment, an application
may not be made more than 12 months before the end of the sentence. If the offender is
subject to a continuing detention order an application may not be made more than 12 months
before the end of the period for which the order is in force. This allows the Supreme Court a
maximum of 12 months to finalise a continuing detention order proceeding. However, in the
event that this process is not finalised before the conclusion of the terrorist offender's
sentence of imprisonment or prior continuing detention order the applicant may apply for an
interim detention order under section 105A.9.
146. Subsection 105A.5(2A) requires the Attorney-General to ensure reasonable enquiries
are made to ascertain any facts known to a Commonwealth law enforcement or intelligence
or security officer that would reasonably be regarded as supporting a finding that an order
should not be made. This will require that reasonable inquiries are made of the existing
material law enforcement or security agencies hold. It will not require those agencies to
undertake further operational enquiries.
147. Subsection 105A.5(3) sets out the requirements for the contents of an application for a
continuing detention order. An application must include any report or documentation the
applicant seeks to rely on, any material or a statement of any facts the applicant is aware of
that could reasonably be regarded as supporting a finding that the order should not be made,
information about the offender's age, and request a period for which an order should be in
force.
148. Subsection 105A.5(4) requires the offender to be given a copy of the application
within two days of the application being made. This ensures the offender understands the
allegations that have been made against them at a very early stage. It operates in addition to
any other applicable procedural rights in a civil proceeding. Subsection 105A.5(5) does not
require the Attorney-General to include in the copy of the application that goes to the
offender any material over which the Attorney-General may seek protective orders
preventing or limiting the disclosure of the information. For example, the Attorney-General
may wish to seek suppression orders to ensure that the information in the application can be
protected from release to the broader public. The provision will enable the Attorney-General
to give a redacted copy of the application to the offender until the Court has dealt with the
suppression order application. It will not prevent the material that the Attorney-General seeks
to rely on in the application from ultimately being disclosed to the offender.
149. Subsection 105A.5(6) makes clear that an applicant is required to give an offender a
complete copy of the application in a timely manner. Where the Attorney-General decides not
to take any of the actions specified in subsection 105A.5(5) to protect the information, or
where the Attorney-General takes such action and the Court makes an order, the applicant is
required to give the offender a complete copy of the application within two business days. In
26
any case, the applicant is required to give the offender a complete copy of the application
within a reasonable period before the commencement of a preliminary hearing for a
continuing detention order.
150. Section 105A.15 provides further guidance for the process of giving terrorist
offenders documents.
Section 105A.6 - Appointment of and assessment by relevant expert
151. Subsections 105A.6(1) and 105A.6(2) provide that the Court must hold a preliminary
hearing within 28 days after the application is given to the offender under subsection
105A.5(4) to determine whether the court should appoint one or more relevant experts. The
role of the expert is to assist the Court in its determination of whether the offender poses an
unacceptable risk of committing a serious Part 5.3 offence if the offender is released into the
community.
152. In order for the Court to appoint an expert under this section, subsection 105A.6(3)
requires that the Court considers that it is 'likely to materially assist the Court in deciding
whether to make the continuing detention order'. This threshold ensures that the Court
considers whether the appointment of experts will be of assistance before requiring the
offender to attend an assessment by the expert. The proceedings can continue, even if the
Court decides not to appoint an expert because it does not consider that it would materially
assist the Court. Furthermore, the Court may decide not to appoint an expert even if it
considers the threshold to be met.
153. Subsection 105A.6(3A) specifies that all parties are able to nominate their preferred
relevant expert, or experts, to assist the Court. It will then be a matter for the Court to
determine whether it wishes to appoint one or more of those nominated experts.
154. The decision to appoint an expert is at the Court's discretion and the Court can decide
to appoint an expert at any point during continuing detention order proceedings.
155. Under subsection 105A.6(4) the relevant expert appointed by the Court must conduct
an assessment of the risk of the offender committing a serious Part 5.3 offence if the offender
is released into the community. This assessment is independent and the report must be
provided to the Court, the Attorney-General and the offender to ensure that all parties are
aware of the evidence provided to the Court. This does not limit the rights of any party to
adduce further evidence under section 105A.14, or the matters the Court must have regard to
under subsection 105A.8(1). The offender must be provided with the report in accordance
with the process for giving terrorist offenders documents as set out in section 105A.15.
156. Subsection 105A.6(5) provides that the offender must attend the assessment, which
may occur over multiple sessions. This subsection does not compel the offender to participate
in any meaningful way. However, the level of the offender's participation in the assessment is
a matter the Court must have regard to under subsection 105A.8(1)(b).
157. Subsection 105A.6(5A) makes clear that any information provided by the offender
during a relevant expert's assessment is not admissible in evidence against the offender in
other civil or criminal proceedings. Any information provided by the offender during the
relevant expert's assessment can be used for the purposes of a continuing detention order
27
proceeding. Subsection 105A.6(5A) is subject to subsection 105A.6(4) and paragraphs
105A.8(1)(b) and (c).
158. This additional safeguard ensures that the offender is relieved of the risk of self-
incrimination when participating in the assessment. This is particularly important as the Court
must have regard to the level of the offender's participation in any such assessment (see
paragraph 105A.8(1)(b)). However, derivative use of the information, such as using the
information to further a law enforcement investigation, will not be prohibited.
159. Subsection 105A.6(6) requires the Court to ensure that the offender is provided with
an explanation of the effect of the requirement for the offender to attend the assessment
(under subsection 105A.6(5)), the inadmissibility of any information provided by the
offender during a relevant expert's assessment in criminal or other civil proceedings (under
subsection 105A.6(5A)), and the fact that the Court must have regard to the offender's
participation in the assessment (under subsection 105A.8(1)(b)). The Court is not required to
explain the effect of these provisions to the offender itself, but must ensure that they have
been explained to the offender.
160. Subsection 105A.6(7) provides for the matters which the expert's report may include.
It allows for the expert to consider all issues that may be relevant to each individual offender
and to assist the Court in its assessment, while ensuring that relevant experts are not required
to advise on those matters that are not within their area of expertise.
161. Subsection 105A.6(8) provides that the provisions in the Bill do not preclude the
parties to the proceedings from seeking to call their own relevant experts as witnesses in the
proceedings. This makes explicit that each party is able to bring forward their own expert, or
experts. The admissibility of each expert's evidence will be a matter for the Court to
determine.
Section 105A.7 - Making a continuing detention order
162. Subsection 105A.7(1) sets out matters of which a Supreme Court of a State or
Territory must be satisfied in order to make a continuing detention order. Importantly, in
order to make a continuing detention order, the Court must be satisfied to a high degree of
probability on the basis of admissible evidence, that the offender poses an unacceptable risk
of committing a serious Part 5.3 offence if the offender is released into the community.
163. The term 'unacceptable risk' is not defined within the Bill and is to be left open to the
Court to apply flexibly on an individual basis. The reference to 'admissible evidence'
emphasises the need for the Court to apply the rules of evidence and procedure for civil
matters (subsection 105A.13(1)). The rules of evidence and procedure for civil matters apply
when the Court is considering the matters it must have regard to (set out in section
105A.8(1)) in determining whether the offender poses an unacceptable risk of committing a
serious Part 5.3 offence (Note 2). The Court may consider evidence of the terrorist offender's
criminal history (subsection 105A.13(2)).
164. Paragraph 105A.7(1)(c) states that to make a continuing detention order the Court
must be satisfied that there is no less restrictive measure that would be effective in preventing
the unacceptable risk. An example of a less restrictive measure is a control order under
sections 104.4 or 104.14 of the Criminal Code. However, this will not require an application
for a control order to be made or for the Court to consider whether the threshold for obtaining
28
a control order would be met. Rather, the Court would need to be satisfied that the kinds of
conditions that may be available under a control order, such as wearing a tracking device or
placing restrictions on who the offender can communicate or associate with, would not be
effective in preventing the unacceptable risk of the offender committing a Part 5.3 offence if
they were released into the community. It is not open to the Court to make a control order as
an alternative to a continuing detention order. Subject to the Attorney-General's consent, a
senior Australian Federal Police member would need to separately request an issuing court to
make an interim control order pursuant to section 104.3 of the Criminal Code. An issuing
court is defined at subsection 100.1(1) of the Criminal Code as the Federal Court of
Australia, the Family Court of Australia or the Federal Circuit Court of Australia.
165. Subsection 105A.7(2) provides that if the Court is not satisfied of the matters in
subsection 105A.7(1) it must dismiss the application.
166. Subsection 105A.7(3) makes it clear that the Attorney-General bears the onus of
satisfying the Court of the required threshold in subsections 105A.7(1)(b) and 105A.7(1)(c).
167. Subsections 105A.7(4) and 105A.7(5) provide that the Court must specify in its
written order the period for which the order is in force. The Court must be satisfied that the
period is reasonably necessary to prevent the unacceptable risk. The period must not be
longer than 3 years. Subsection 105A.7(6) clarifies that the requirement that an order be no
longer than 3 years does not prevent the Court from making successive continuing detention
orders. There is no limit to the number of continuing detention orders that may be made
against a terrorist offender.
Section 105A.8 - Matters a Court must have regard to in making a continuing detention
order
168. Section 105A.8(1) provides for the matters that the Court must have regard to in
considering whether it is satisfied of the matters set out in paragraph 105A.7(1)(b). These
include:
the safety and protection of the community
the report of any Court appointed expert, and the level of the offender's participation
in the assessment by the expert
the results of any other assessment conducted by a relevant expert of the risk of the
offender committing a serious Part 5.3 offence, and the level of the offender's
participation in any such assessment
reports prepared by relevant corrective services and other authorities competent to
assess the extent to which the offender can be reasonably and practically managed in
the community
the offender's participation in any treatment and rehabilitation programs
the offender's compliance with obligations while on parole for any of the offences
listed in paragraph 105A.3(1)(a), or subject to a continuing or interim detention order
the offender's criminal history of convictions for and findings of guilt in relation to
any of the offences listed in paragraph 105A.3(1)(a)
29
views of the sentencing court at the time the relevant sentence of imprisonment was
imposed for any of the offences in paragraph 105A.3(1)(a), and
any other information as to the risk of the offender committing a serious Part 5.3
offence.
169. Subsection 105A.8(2) makes clear that the list of matters the Court must have regard
to in determining whether or not to make a continuing detention order does not preclude the
Court from having regard to any other matter the Court considers relevant. This could include
the offender's compliance with any obligations to which he or she has been subject while on
parole for any other offence, or the offender's criminal history as it concerns other criminal
offences, if the Court considered such information to be relevant.
170. Subsection 105A.8(3) clarifies that section 105A.13, concerning civil evidence and
procedure rules in relation to continuing detention order proceedings, applies to the Court's
consideration of the matters it must have regard to in considering whether the offender poses
an unacceptable risk of committing a serious Part 5.3 offence and in considering any other
matters the Court considers relevant.
Section 105A.9 - Interim detention orders
171. Subsection 105A.9(1) enables the Attorney-General, or a legal representative of the
Attorney-General, to apply to the Supreme Court of a State or Territory to seek an interim
detention order. An application may only be made if an application for a continuing detention
order has been made to the Court in relation to the offender.
172. Subsection 105A.9(1A) provides that if the Attorney-General applies to the Court for
an interim detention order, the Court must hold a hearing to determine whether to make the
interim continuing detention order.
173. Subsection 105A.9(2) sets out the circumstances in which the Court may make an
interim detention order, and the matters of which it must be satisfied. The purpose of an
interim detention order is to ensure that an interim measure can be put in place when the
terrorist offender's sentence, or existing continuing detention order, will come to an end
before the Court has been able to make a decision on whether to make the continuing
detention order. The Court must be satisfied that there are reasonable grounds for considering
that a continuing detention order will be made in relation to the offender before it can make
an interim detention order.
174. Subsection 105A.9(3) provides that an interim detention order has the same effect as a
continuing detention order as it commits the offender to detention in prison, as defined in
section 105A.2, while the order is in force.
175. Subsections 105A.9(4), 105A.9(5) and 105A.9(6) provide that the Court must specify
the length of an interim detention order, however, the period is to be no longer than 28 days.
Successive interim detention orders may be made against the offender, however, the total
period of all interim detention orders must not exceed three months.
176. Subsection 105A.9(7) provides that offenders subject to an interim detention order are
to be treated the same as offenders subject to a continuing detention order, as prescribed
under section 105A.4.
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Subdivision D
Section 105A.10 - Periodic review of continuing detention order
177. Subsections 105A.10(1A) and (1B) provide that the Attorney-General, or a legal
representative of the Attorney-General, must apply to a Supreme Court of a State or Territory
for a review of a continuing detention order within 12 months after the order has been in
force; or 12 months after the order was most recently reviewed. Subsection 105A.10(1)
provides that on receiving the application for review, the Court must begin the review before
the end of that period. The note advises that the process for reviewing a continuing detention
order is provided for at section 105A.12.
178. Subsection 105A.10(2) clarifies that an application for a review, and a review, are not
required where an application for a new continuing detention order has been made in relation
to the offender and not withdrawn.
179. Subsection 105A.10(3) provides that the application for review must be made to the
Supreme Court of the State or Territory where the prison in which the offender is detained is
located.
180. Subsection 105A.10(4) provides that the consequence of not making an application in
accordance with section 105A.10, including within the prescribed time pursuant to subsection
105A.10(1B), is that the order will cease to be in force at the end of the period referred to in
subsection 105A.10(1B).
Section 105A.11 - Review of continuing detention order on application
181. In addition to the required periodic review of the continuing detention order under
section 105A.10, subsection 105A.11(1) gives the terrorist offender, or their legal
representative, a right to apply for a review of their continuing detention order to the Supreme
Court of the State or Territory in which they are detained.
182. Subsection 105A.11(2) provides the matters that the Court must be satisfied of in
order to conduct a review on application. If the Court is not satisfied of those matters,
subsection 105A.11(3) requires the Court to dismiss the application.
Section 105A.12 - Process for reviewing a continuing detention order
183. Section 105A.12 establishes the process for a review of a continuing detention order
conducted under either section 105A.10 or 105A.11.
184. Under subsection 105A.12(2) the parties to the review are the Attorney-General and
the offender. Subsection 105A.12(3) provides that the Court also has the discretion to appoint
one or more relevant experts for the purpose of the review following the processes
established in subsections 105A.6(4) to (7).
185. Subsection 105A.12(3A) specifies that all parties are able to nominate their preferred
relevant expert, or experts, for the purposes of the review.
186. Subsection 105A.12(3B) provides that subsection 105A.12(3) does not prevent the
Attorney-General, the offender, or their legal representatives, from calling his or her own
relevant expert as a witness in the review.
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187. The Court may affirm the order if it is satisfied of the matters set out in paragraph
105A.12(4)(a) and 105A.12(4)(b). If the Court is not so satisfied subsection 105A.12(5)
requires that it revoke the order. The rules of evidence and procedure for civil matters apply
when the Court is considering the matters it must have regard to when deciding whether to
affirm or revoke the continuing detention order.
188. Subsection 105A.12(5A) requires the Attorney-General to ensure reasonable enquiries
are made to ascertain any facts known to a Commonwealth law enforcement or intelligence
or security officer that would reasonably be regarded as supporting a finding that an order
that is being reviewed pursuant to section 105A.10 or 105A.11 should not be affirmed. This
will require that reasonable inquiries are made of the existing material law enforcement or
security agencies hold. It will not require those agencies to undertake further operational
enquiries.
189. Under subsection 105A.12(6) the Attorney-General bears the onus of satisfying the
Court of the matters set out in subsection 105A.12(4).
190. Under subsection 105A.12(6A), during proceedings for the review of a continuing
detention order, the Attorney-General (or representative of the Attorney-General) must
provide the Court with any material, or a statement of any facts, they are aware of that could
reasonably be regarded as supporting a finding that the order should not be affirmed.
191. Following a review of a continuing detention order, if the Court decides to affirm the
order, but is not satisfied that the length of the order is reasonably necessary to prevent the
unacceptable risk, the Court must under subsection 105A.12(7) vary the order to shorten the
time for which it will be in force. In varying the order, the Court must also be satisfied that
the new period is reasonably necessary to prevent the unacceptable risk.
Subdivision E - Provisions relating to continuing detention order proceedings
Section 105A.13 - Civil evidence and procedure rules in relation to continuing detention
order proceedings
192. Subsection 105A.13(1) provides that, in any continuing detention order proceeding
the Supreme Court of a State or Territory must apply the rules of evidence and procedure for
civil matters. However, subsection 105A.13(2) provides that, despite anything to the contrary
in the rules of evidence and procedure, the Court may receive in evidence in the proceeding
evidence of:
the offender's compliance with any obligations to which he or she has been subject
while on parole for any offence, and
the offender's criminal history of convictions for and findings of guilt in relation to
any offence.
Section 105A.14 - Adducing evidence and making submissions
193. Section 105A.14 ensures that any party to a continuing detention order proceeding is
entitled to adduce evidence (including by calling witness or producing material), or make
submissions, to the Court in relation to the proceeding.
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Section 105A.15 - Giving terrorist offenders documents
194. Section 105A.15 provides for the process if a terrorist offender is required to be given
a document under Division 105A. In the event that a terrorist offender who is in detention is
required to be given a document, the documents are to be given to the legal representative of
the offender in the first instance. If the offender does not have a legal representative, the
documents may be provided to the chief executive officer of the prison or their delegate.
195. Subsection 105A.15(2) requires the recipient to give the document to the offender as
soon as reasonably practicable. Once they have done so, the recipient must notify the Court
and the person who gave the offender the document, in writing that the document was given
to the offender and the day it was given to the offender. This section ensures that the offender
has full access to the information and documents relevant to the proceeding, and that the time
limits prescribed within Division 105A operate fairly.
Section 105A.15A - When a terrorist offender is unable to engage a legal representative
196. Section 105A.15A empowers the Court to make certain orders if an offender, due to
circumstances beyond the offender's control, is unable to obtain legal representation in
relation to a continuing detention order proceeding.
197. Paragraph 105A.15A(2)(a) provides that the Court may make orders staying the
continuing detention order proceeding for such period and subject to such conditions as the
Court thinks fit. For example, the Court may decide the proceeding should be stayed for a
short period of time whilst the offender pursues further avenues for obtaining legal
representation.
198. Paragraph 105A.15A(2)(b) provides that the Court may make an order requiring the
Commonwealth to bear reasonable costs and expenses to enable the offender to obtain legal
representation.
199. Subsection 105A.15A(3) creates a power to make regulations that may prescribe
matters the Court may, must or must not consider in determining these matters.
200. It is expected that a Court would only make an order under paragraph (2)(b) in very
limited circumstances where it is clear that all other avenues for the offender obtaining legal
representation have been pursued, and that the offender has played no part in creating the
situation where they are unrepresented.
Section 105A.16 - Reasons for decisions
201. Section 105A.16 requires the Court to provide reasons for its decision in relation to
any continuing detention order decision. The Court must also cause those reasons to be
entered into the records of the Court and a copy of any order to be provided to each party.
Section 105A.17 - Right of Appeal
202. Subsection 105A.17(1) provides that a right of appeal lies to the court of appeal of a
State or Territory when a Supreme Court of a State or Territory makes a continuing detention
order decision.
33
203. Subsection 105A.17(2) establishes that an appeal is to be by way of rehearing. It also
clarifies the powers of the Court when hearing an appeal.
204. When rehearing the matter, the court of appeal may:
subject to the subsection (e.g. subject to the stipulation that the appeal is to be by way
of rehearing), exercise or perform all the powers, functions and duties that the Court
appealed from had in relation to relevant continuing detention order proceedings
draw inferences of fact which are not inconsistent with the findings of the Supreme
Court, and
receive further evidence as to questions of fact if the court of appeal is satisfied that
there are special grounds for doing so.
205. Stipulating that the appeal is to be 'by way of rehearing' indicates that the court of
appeal could not substitute its discretionary opinion for that of the Court that made the
continuing detention order decision unless the Court made the decision in error (for example,
the Court mistook the facts, or the Court did not take into account a material consideration).
206. Paragraph 105A.17(2)(c) indicates that the court of appeal must decide the appeal
based on the facts that were before the original Court unless it is satisfied there are special
grounds for receiving further evidence. It is a matter for the court of appeal to determine
whether special grounds are established depending upon the particular circumstances of the
case. For example, the court of appeal could decide that there are special grounds for
receiving further evidence because there has been a significant lapse of time between the
decision of the Court that made the continuing detention order decision and the court of
appeal's consideration of the matter.
207. Subsection 105A.17(3) ensures that appeals may be made both as of right (within 28
days after the day the continuing detention order decision was made), or by leave of the court,
within such further time as the court of appeal may allow.
208. Subsections 105A.17(4) and 105A.17(5) stipulate that the making of an appeal does
not stay the operation of a continuing detention order or interim detention order, and that
nothing in section 105A.17 limits any other right of appeal.
Section 105A.18 - Consequences of release of terrorist offender
209. Subsection 105A.18(2) addresses the situation in which the offender is released from
custody before a continuing detention order proceeding or an appeal, including an appeal
against a decision under section 105A.15A to stay proceedings, has been determined because,
for example, the offender's custodial sentence has expired, or the relevant interim or
continuing detention order has expired, or been revoked. In the circumstances prescribed by
subsection 105A.18(1), subsection 105.18(2) enables the Court to subject the offender to a
continuing detention order, despite the offender not being in custody at the time the order is
made.
210. Subsections 105A.18(3) to 105A.18(5) provide that in this situation, police officers
have the power to detain the person for the purposes of giving effect to a continuing detention
order or an interim detention order. A police officer who takes the person into custody has the
34
same powers and obligations as the police officer would have if they were arresting a person,
or detaining a person for an offence.
Subdivision F - Miscellaneous
Section 105A.19 - Sharing information
211. The purpose of section 105A.19 is to facilitate information sharing about a terrorist
offender between the Attorney-General, the Attorney-General's Department and relevant
third party agencies, for the purpose of Division 105A. Similar to when the Attorney-General
makes decisions under the Crimes Act 1914 (Cth) in relation to parole for federal offenders,
the Attorney-General will need to rely heavily on information provided by third parties, and
Commonwealth and State or Territory agencies to determine whether to make an application
for a continued detention order in relation to a terrorist offender. Section 105A.19 will
facilitate the sharing of necessary and relevant information about a terrorist offender to
ensure the Attorney-General can make an informed decision.
212. Subsection 105A.19(1) allows the Attorney-General to request a person to give them
information that the Attorney-General reasonably believes to be relevant to the administration
or execution of Division 105A. The Attorney-General may only request information from a
person prescribed by the regulations.
213. Subsection 105A.19(2) specifies that the request for information under subsection
105A.19(1) need not be in writing.
214. Subsection 105A.19(3) allows the Attorney-General to disclose information to a
person prescribed by the regulations in the circumstances set out in that subsection.
215. Subsection 105A.19(4) ensures that subsection 105A.19(3) applies despite any other
law of the Commonwealth, a State or Territory (whether written or unwritten).
Section 105A.20 - Delegation by the Attorney-General
216. Section 105A.20 provides for the Attorney-General to delegate to the Secretary of the
Attorney-General's Department or another relevant employee of the Department who
performs duties in connection with the administration or execution of Division 105A, his or
her powers and functions in requesting or disclosing information under section 105A.19.
217. The section restricts delegation of the Attorney-General's powers to employees who
perform duties in connection with Division 105A. Only a limited number of officers in the
Department will perform duties in connection with an application for a continuing detention
order including being able to request or disclose necessary and relevant information, and this
information will be held separately within the Department's record keeping system. This will
ensure that other employees of the Department who do not have a need to know, cannot
access information about the terrorist offender.
Section 105A.21 - Arrangement with States and Territories
218. Terrorist offenders subject to a continuing detention order or an interim detention
order will be housed in State and Territory prison facilities. Subsection 105A.21(1) allows the
Attorney-General to make arrangements with any State or Territory to facilitate this.
35
219. Subsection 105A.21(2) provides the chief executive officer (however described) of
the prison with authority to detain the offender within the prison for the period of a
continuing detention order or an interim detention order.
Section 105A.22 - Annual report
220. Subsection 105A.22(1) requires the Attorney-General to, as soon as practicable after
30 June each year, cause a report to be prepared about the operation of this Division during
the year ended on that 30 June.
221. Subsection 105A.22(2) requires the report to include the information set out in that
subsection.
222. Subsection 105A.22(3) requires the Attorney-General to table copies of the report
before each House of the Parliament within 15 sitting days of that House after the report is
complete.
Section 105A.23 - Warning about continuing detention order when sentencing for certain
offences
223. Subsection 105A.23(1) provides that a court that is sentencing a person who is
convicted of an offence referred to in paragraph 105A.3(1)(a) must warn the person that an
application may be made under Division 105A for a continuing detention order requiring the
person to be detained in a prison after the end of the person's sentence for the offence.
224. Subsection 105A.23(2) provides that a failure by the court to comply with subsection
105A.23(1) does not affect the validity of the sentence for the offence, or prevent an
application from being made under Division 105A in relation to the person.
Section 105A.24 - Effect of continuing detention order on bail or parole laws
225. Subsection 105A.24(1) clarifies that a person who is subject to a continuing detention
order is not eligible to be released on parole until the order ceases to be in force. A continuing
detention order is only likely to commence at the end of the offender's sentence when parole
is no longer available to that person. However, this amendment makes it very clear that
parole is not available to the offender whilst they are subject to an interim or continuing
detention order.
226. Subsection 105A.24(1) also clarifies that a person who is subject to an interim or
continuing detention order is not eligible to be released on bail in relation to that order.
227. If an offender commits a further offence whilst detained in a prison under a
continuing detention order, and they apply for bail in relation to that offence, the offender
may not be released on bail while the continuing detention order remains in force. While it is
unlikely a court would grant bail to an offender who is currently subject to a continuing
detention order (given such an individual would have been recently assessed by a court to
pose an unacceptable risk of committing a serious terrorism offence), this provision clarifies
that the individual cannot be released while the order remains in force. Subsection
105A.24(2) makes it clear that the offender would not be precluded from applying, before the
order ceases to be in force, to be released on bail. However, if a court was minded to grant
bail to the offender, the offender could not be released while the continuing detention order
remained in force.
36
228. Subsection 105A.24(3) makes it clear that section 105A.24 applies despite any law of
the Commonwealth, a State or a Territory.
Section 105A.25 - Sunset Provision
229. Section 105A.25 provides that a continuing detention order cannot be applied for, or
made, after the end of 10 years after the day the Bill received Royal Assent. A continuing
detention order that is in force at the end of this sunset period will remain in force for the rest
of the period specified in the order. During this time all of the architecture of Division 105A
will apply to those orders, including periodic review requirements and the appeal provisions.
Item 2 - In the appropriate position in Division 106 of the Criminal Code
Item 2 inserts section 106.8 into the Criminal Code.
Section 106.8 - Application provision for amendments in the Criminal Code Amendment
(High Risk Terrorist Offenders) Act 2016
230. Section 106.8 prescribes who the Bill will apply to upon commencement. Subsection
106.8(1) provides that the amendments to section 104.2 in this Bill will apply in relation to
any control order, whether made before or after this section commences.
231. Subsection 106.8(2) provides that the amendments to subsections 104.5(1) and (1B)
and section 104.12 in this Bill will apply in relation to a control order if the request for the
control order is made after this section commences.
232. Subsection 106.8(3) provides that the amendments to subsection 104.5(1C) and
(2AA) in this Bill will apply in relation to any control order, whether made before or after
this section commences.
233. Subsection 106.8(4) provides that the amendments to section 104.17 in this Bill will
apply in relation to any interim control order that is declared to be void, revoked or confirmed
after this section commences.
234. Subsection 106.8(5) provides that the amendments to section 104.26 in this Bill will
apply in relation to any control order varied after this section commences.
235. Subsection 106.8(6) provides that new section 104.28B will apply in relation to the
giving of documents after this section commences.
236. Subsection 106.8(7) provides that the post sentence preventative detention scheme in
new Division 105A (apart from new section 105A.23--warning about continuing detention
order when sentencing for certain offences) will apply to any person who has been detained
in custody and is serving a sentence of imprisonment for a relevant offence, regardless of
whether they were convicted and sentenced prior to the commencement of the scheme. It will
also apply to persons who have been convicted of a relevant offence prior to the
commencement of the scheme, but sentenced after the commencement of the scheme.
237. Subsection 106.8(8) provides that the requirement under section 105A.23 for a
sentencing court to warn a person convicted of a relevant offence about the effect of Division
105A will apply to any sentence imposed after the commencement of section 105A.23,
regardless of when the offence was committed.
37
Item 3 - In the appropriate position in Division 106 of the Criminal Code
238. Item 3 inserts a note at the end of section 117.1 of the Criminal Code. This note
clarifies that, consistent with section 105A.23, a Court sentencing a person for a foreign
incursions and recruitment offence against Part 5.5 (other than offences against subsections
119.7(2) and (3) of the Criminal Code, which refer to publishing recruitment advertisements)
must warn a person about the effect of Division 105A.
Schedule 2 - Consequential amendments
Part 1 - Amendments commencing on day fixed by Proclamation
Crimes Act 1914
Items 1A & 1B - Paragraph 3ZQU(1)(e) and 3ZZEA(1)(d)
239. Items 1A and 1B replace references to Division 104 and 105 in paragraphs
3ZQU(1)(e) and 3ZZEA(1)(d) of the Crimes Act 1914 with references to Division 104, 105
and 105AA.
240. Section 3ZQU governs the use and sharing of things seized under Part IAA and
information and documents produced under Division 4B of the Crimes Act 1914. It is
appropriate that a constable or Commonwealth officer may use things that:
have been seized under Part IAA, or
the original or a copy of a document produced under Division 4B
for the performance of a function or duty, or the exercise of a power, by a person, court or
other body under, or in relation to a matter arising under, the proposed Division 105A
(continuing detention orders) of the Criminal Code. For example, if a search warrant is
executed as part of an investigation of possible terrorism offences, it is appropriate that any
evidence seized during the execution of that warrant be able to be used to support an
application for, or proceedings related to, continuing detention orders. This ensures the
Attorney-General, or a legal representative of the Attorney-General, and the Court has all
evidence available when making or determining a continuing detention order application in
relation to a terrorist offender.
Item 1C - At the end of subsection 16F(1)
241. Item 1C inserts a note after subsection 16F(1) of the Crimes Act 1914, to make clear
that, consistent with section 105A.23 of the Criminal Code, a Court sentencing a person for
an offence in relation to which a continuing detention order may be sought must warn a
person about the effect of Division 105A.
Independent National Security Legislation Monitor Act 2010
Items 1D and 1E - After subparagraph 6(1)(a)(i) and After subsection 6(1B)
242. Item 1D inserts subparagraph 6(1)(a)(ia) into the Independent National Security
Legislation Monitor Act 2010, to specify that the Independent National Security Legislation
Monitor review the continuing detention order regime. Item IE inserts subsection 6(1C),
38
which requires that the review is completed within five years of the Criminal Code
Amendment (High Risk Terrorist Offenders) Act 2016 receiving Royal Assent.
Intelligence Services Act 2001
1F - After paragraph 29(1)(ca)
243. Item 1F inserts paragraph 29(1)(cb) into the Intelligence Services Act 2001 to specify
that the Parliamentary Joint Committee on Intelligence and Security complete a review of the
operation, effectiveness and implications of the continuing detention order regime within six
years of the Criminal Code Amendment (High Risk Terrorist Offenders) Act 2016 receiving
Royal Assent.
Surveillance Devices Act 2004 and Telecommunications (Interception and Access) Act
1979
Overview
244. The amendments in this Schedule will allow agencies to use, communicate or give in
evidence information obtained using powers in the Surveillance Devices Act 2004 (the SD
Act) and the Telecommunications (Interception and Access) Act 1979 (the TIA Act) for
purposes related to new Division 105A of the Criminal Code.
245. The amendments do not provide new purposes for which intercepted information,
stored communications, telecommunications data or surveillance device material can be
obtained under a warrant or authorisation. Rather, the amendments allow for information that
has been obtained by using those methods to be further used, communicated or given in
evidence for purposes related to new Division 105A of the Criminal Code.
246. The amendments reflect the structure of continuing detention and interim detention
orders. Such orders can only be obtained where the subject has been convicted of certain
terrorism offences (e.g. serious Part 5.3 offences) and the continued detention of the terrorist
offender is necessary because the person poses an unacceptable risk of committing a serious
Part 5.3 offence if released into the community. For instance, the amendments allow for
information that was obtained in relation to the conviction of the original terrorism offence to
be adduced in an application to keep the offender in detention to prevent the commission of a
further terrorism offence.
Item 1 - Subsection 6(1) of the SD Act
247. Item 1 inserts a new paragraph into the definition of 'relevant proceeding' under
section 6 of the SD Act to include a proceeding under, or related to a matter arising under,
Division 105A of the Criminal Code.
248. This item will allow protected information (within the meaning of section 44 of the
SD Act) to be used, recorded, communicated, published or admitted in evidence for the
purposes of a proceeding under, or related to a matter arising under, Division 105A of the
Criminal Code.
39
Items 2 and 3 - Subsection 5(1) of the TIA Act
249. Subsection 63(1) of the TIA Act prohibits a person from communicating to another
person, making use of, or making a record of lawfully intercepted information. Section 67 of
the TIA Act establishes an exception to this prohibition. This exception enables officers of
the relevant interception agency to communicate to another person, make use of, or make a
record of lawfully intercepted information for a 'permitted purpose'.
250. This item amends the definition of 'permitted purpose' to provide the AFP and state
and territory police with the ability to use, communicate or record lawfully intercepted
information for the purposes of continuing detention and interim detention orders under new
Division 105A of the Criminal Code.
Item 4 - After paragraph 5B(1)(bc) of the TIA Act
251. Subsection 63(1) of the TIA Act prohibits a person from giving in evidence in a
proceeding lawfully intercepted information. Section 74 of the TIA Act establishes an
exception to this prohibition. Subsection 74(1) relevantly provides that a person may give
lawfully intercepted information 'in evidence in an exempt proceeding'.
252. Item 4 amends the definition of 'exempt proceeding' in subsection 5B(1) of the Act to
allow agencies to use lawfully intercepted information in a proceeding relating to continuing
detention and interim detention orders under Division 105A of the Criminal Code.
Item 5 - Before section 140 of the TIA Act
253. 'Lawfully accessed information' is defined as information obtained by accessing a
stored communication otherwise than in contravention of subsection 108(1). Pursuant to
paragraph 108(2)(a), the prohibition in subsection 108(1) does not apply to accessing a stored
communication under a stored communications warrant.
254. Item 5 inserts new section 139C which ensures that 'lawfully accessed information'
can be used, communicated, recorded or given in evidence for a purpose connected with new
Division 105A of the Criminal Code.
Item 6 - After subparagraphs 180D(2)(b)(i) and (c)(i)
255. Sections 180A and 180B allow an authorised officer of the Australian Federal Police
(AFP) to authorise access to historical (180A) and prospective (180B) telecommunications
data if the disclosure is reasonably necessary for the enforcement of the criminal law of a
foreign country. The authorised officer may only lawfully authorise the use or disclosure of
information obtained under an 180A or 180B for a limited number of purposes.
256. Item 6 inserts new subparagraphs to allow an authorised officer in the AFP to
authorise the use or disclose of information or documents obtained under an 180A or 180B
authorisation if the use or disclosure is reasonably necessary for the purposes of the new
Division 105A.
Items 7 & 8 - After subparagraphs 181B(3)(b)(ii) and 181B(6)(b)(i)
257. Section 181B prohibits a person from disclosing or using information about an
authorisation for telecommunications data (or its revocation) by an enforcement agency under
40
Division 4 or information about such an authorisation (or revocation). Division 4 regulates
access to historical and prospective telecommunication data by enforcement agencies,
allowing an authorised officer to disclosure data if reasonably necessary for the enforcement
of the criminal law, location of missing persons, imposing a pecuniary penalty or protecting
the public revenue. Contravention of the prohibition against the use and disclosure of this
information exposes a person to criminal liability.
258. Items 7 and 8 insert subparagraphs to allow a person to use or disclose this
information for the purposes of the new Division 105A.
259. There has been no amendment to subsections 181A(3) and 181A(6), which apply to
the disclosure and use of information in relation to authorisations made by the Australian
Security Intelligence Organisation (ASIO), as those provisions enable ASIO to disclose such
information for purposes related to new Division 105A in the performance of its functions.
Items 9 & 10 - After subparagraphs 182(2)(a)(iii) and 182(3)(a)(ii)
260. Subsection 182(1) prohibits a person from disclosing or using information or
documents provided to them as permitted by Division 4 or 4A. Division 4 and 4A regulate
access to historical and prospective telecommunications data by enforcement agencies.
Division 4 allows an authorised officer to disclose data if reasonably necessary for the
enforcement of the criminal law, location of missing persons, imposing a pecuniary penalty
or protecting the public revenue. Division 4A allows an authorised AFP officer to disclose
data if reasonably necessary for the enforcement of the criminal law of a foreign country.
Contravention of the prohibition against the use and disclosure of this information exposes a
person to criminal liability.
261. Items 9 and 10 insert paragraphs to allow a person to use or disclose this information
if the disclosure is reasonably necessary for the purposes of Division 105A.
Item 11 - After subparagraphs 182B(b)(iv)
262. Section 182A prohibits a person from disclosing or using information about a
journalist information warrant or the journalist information warrant (or its revocation).
Contravention of this prohibition exposes a person to criminal liability.
263. Item 11 inserts a paragraph to allow a person to use or disclose this information if the
disclosure is reasonably necessary for the purposes of Division 105A.
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Part 2 - Contingent amendments
264. This Part is contingent on items 51 to 55 of the Counter-Terrorism Legislation
Amendment Bill (No. 1) 2016 (the CTLA Bill) passing Parliament and receiving Royal
Assent. These items relate to the introduction of new section 139B, and amend provisions
relating to further dealing of 'lawfully accessed information' and the destruction of such
information.
265. Depending on the passage of the CTLA Bill, sections 139, 139A, 142 and 150 will be
amended to reflect the introduction of new section 139C (item 5 of Schedule 1). These
provisions relate to further dealing of 'lawfully accessed information' and the destruction of
such information.
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