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2019-2020-2021
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
COUNTER-TERRORISM LEGISLATION AMENDMENT (HIGH RISK
TERRORIST OFFENDERS) BILL 2020
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments to be Moved on Behalf of the Government
(Circulated by authority of the
Attorney-General, Senator the Honourable Michaelia Cash)
AMENDMENTS TO THE COUNTER-TERRORISM LEGISLATION AMENDMENT
(HIGH RISK TERRORIST OFFENDERS) BILL 2020
GENERAL OUTLINE
1. The Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders)
Bill 2020 amends the Criminal Code Act 1995 to establish an extended supervision
order (ESO) scheme for high-risk terrorist offenders who continue to pose an
unacceptable risk to the community at the expiration of their custodial sentence. The
ESO scheme will form part of the High Risk Terrorist Offenders (HRTO) regime in
Part 5.3 of the Criminal Code.
2. The purpose of these amendments to the Bill is to address potential issues which may
arise in the practical application of orders made under Part 5.3 of the Criminal Code.
The amendments also respond to recommendations of the Parliamentary Joint
Committee on Intelligence and Security (PJCIS), which considered the Bill and
provided a report on 16 September 2021.
3. The amendments to the Bill:
• provide that ESOs and control orders can commence where a person is in non-
prison custody, including immigration detention, and that the conditions of
these orders would remain enforceable against an offender who is detained in
any form of non-prison custody.
• provide that orders under Part 5.3 of the Criminal Code, such as ESOs and
control orders, are the only measures that may be considered by a State or
Territory Supreme Court when deciding whether there is a 'less restrictive
measure' to a continuing detention order (CDO) that would be effective in
preventing the offender's unacceptable risk of committing a serious Part 5.3
offence.
• provide that a Court must have regard to whether an offender is under a
post-sentence order (PSO) of a State or Territory, and the cumulative impact
of multiple PSOs on the person. A Court must also assess the necessity and
proportionality of each individual condition under an ESO, and the combined
effect of all of the proposed conditions of the ESO.
• provide that a Court may make an order to stay proceedings or order the
Commonwealth to pay all or part of the reasonable costs of legal
representation of an offender, where an offender would be otherwise
unrepresented in ESO or interim supervision order (ISO) proceedings.
• ensure that an ESO cannot provide that an offender is to remain at specified
premises for more than 12 hours in a 24 hour period.
4. The amendments will also amend the Intelligence Services Act 2001 to provide that
the PJCIS may commence an inquiry into Division 105A of the Criminal Code
2
within 12 months of the Independent National Security Legislation Monitor's report
being completed.
FINANCIAL IMPACT
5. The Government is working with States and Territories on the implementation of the
High Risk Terrorist Order regime in Part 5.3 of the Criminal Code. Costs will be
considered as part of the overall implementation of the scheme.
3
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2020
2. The amendments to the Bill are 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 Legislative Amendments
3. The Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders)
Bill 2020 establishes the ESO scheme for high-risk terrorist offenders who continue
to pose an unacceptable risk to the community at the expiration of their custodial
sentence. The amendments to the Bill:
• provide that ESOs and control orders can commence where a person is
detained in non-prison custody, including immigration detention, and that the
conditions of these orders would remain enforceable against an offender who
is detained in any form of non-prison custody.
• provide that orders under Part 5.3 of the Criminal Code, such as ESOs and
control orders, are the only measures that may be considered by a State or
Territory Supreme Court when deciding whether there is a 'less restrictive
measure' to a CDO that would be effective in preventing the offender's
unacceptable risk of committing a serious Part 5.3 offence.
• provide that a Court must have regard to whether an offender is under a PSO
of a State or Territory, and the cumulative impact of multiple PSOs on the
person. A Court must also assess the necessity and proportionality of each
individual condition under an ESO, and the combined effect of all of the
proposed conditions of the ESO.
• provide that a Court may make an order to stay proceedings or order the
Commonwealth to pay all or part of the reasonable costs of legal
representation of an offender, where an offender would be otherwise
unrepresented in ESO or ISO proceedings.
• ensure that an ESO cannot provide that an offender is to remain at a specified
premises for more than 12 hours in a 24 hour period.
4. The amendments will also amend the Intelligence Services Act 2001 to provide that
the PJCIS may commence an inquiry into Division 105A of the Criminal Code
within 12 months of the Independent National Security Legislation Monitor's report
being completed.
5. This Statement of Compatibility with Human Rights considers the engagement of
these amendments, including the application of ESOs and control orders in a broader
range of circumstances, with relevant human rights. It is to be read in conjunction
4
with the Statement released 3 September 2020, which outlines how the amendments
contained in the Bill engage relevant human rights.
Overview of measures
Amendments to the Criminal Code
6. The amendments provide that ESOs and control orders in relation to a person can
commence where the person is in non-prison custody, and the conditions of these
orders would remain enforceable against the person while in non-prison custody.
Clarifying interaction between control orders/ESOs and non-prison custody
7. The amendments amend section 100.1 to create new definitions of detained in
custody, detained in custody in a prison and detained in non-prison custody,
namely:
• A person is detained in custody if the person is detained in custody under a
law of the Commonwealth, a State or a Territory (this broader concept would
encompass both prison and non-prison custody, as defined below).
• A person is detained in custody in a prison if the person is detained in
custody in a gaol, lock-up or remand centre, including under a CDO or interim
detention order (IDO). However, a person is not detained in custody in a
prison if the person is in immigration detention in a gaol, lock-up or remand
centre.
• A person is detained in non-prison custody if the person is detained in
custody, but is not detained in custody in a prison.
8. These definitions have been applied across existing provisions in Part 5.3 of the
Criminal Code, as well as the new provisions of the Bill, to ensure that:
• ESOs and control orders can commence where a person is in non-prison
custody, and
• the conditions of these orders would remain enforceable against an offender
who is in non-prison custody.
9. Non-prison custody is different to forms of custody in a prison. As an example,
immigration detention is administrative rather than punitive in purpose. Immigration
detention facilities are generally less restrictive than prison facilities and could afford
a person access to technology and the ability to associate with others that may be
inconsistent with the purpose of a Part 5.3 order.
10. If a terrorist offender holds a visa, they may be subject to visa cancellation. There are
circumstances where the cancellation of a person's visa would be mandatory under
subsection 501(3A) of the Migration Act 1958. This would include if they have been
sentenced to imprisonment for life, or 12 months or more, for a Commonwealth,
State or Territory offence, and are serving that sentence on a full-time basis in a
custodial institution.
5
11. If an offender is not an Australian citizen and does not hold a valid visa, the
Migration Act 1958 imposes an obligation on officers (as defined under section 5 of
that Act) to detain that offender as an unlawful non-citizen. In practice, an offender
may be transported directly from prison to immigration detention once their sentence
has concluded. Under current paragraph 104.5(1)(d) of the Criminal Code, an interim
control order (ICO) does not commence until the individual subject to the control
order is 'released from custody'.
12. As currently drafted, the legislation does not make it clear that a control order can
commence in a circumstance where an offender is transported directly to non-prison
custody at the conclusion of their custodial sentence.
13. The amendments ensure that ESOs and control orders can commence, and be
enforceable against a person in immigration detention and other forms of non-prison
custody.
14. This is necessary to ensure that the risk posed by terrorist offenders on their release
from their custodial sentence can be effectively managed. This includes the risk that
they may pose to others in non-prison custody, as well as the broader risk to the
community (for example, through inspiring or directing others to engage in terrorist
acts).
Breach of an ESO or control order due to being held in immigration detention
15. The amendments introduce new subsections 104.27(2) and 105A.18A(3), which
provide that an offender who is unable to comply with a condition of their control
order or ESO, due to the fact that they are detained in non-prison custody (such as
immigration detention), does not commit an offence under section 104.27 or
section 105A.18A for breach of an ESO or control order.
16. This may arise where an order requires a person to reside at a certain address, or
physically present to a certain location periodically, but the offender is unable to do
so because they are being held in non-prison custody. This ensures that an offender is
not subject to criminal liability for breaching an order where compliance with an
imposed condition is not possible because the person is in non-prison custody.
Obligation to remove or vary an ESO condition
17. The amendments introduce new section 105A.9B which provides that the AFP
Minister must make an application to the Court to remove or vary an ESO condition
if they are satisfied that the condition is no longer reasonably necessary, or
reasonably appropriate and adapted, for the purpose of protecting the community
from the unacceptable risk of the offender committing a serious Part 5.3 offence.
18. If a person under an ESO becomes subject to non-prison custody, such as
immigration detention, and because of that change in the person's circumstances the
Minister is satisfied that certain conditions under the ESO are no longer reasonably
necessary, or reasonably appropriate and adapted, the Minister is obliged to apply to
the Court to vary or remove the relevant condition.
6
No less restrictive measure
19. The amendments also amend the 'less restrictive measure' limb of the CDO threshold
in paragraph 105A.7(1)(c) of the Criminal Code. The amendments provide that ESOs
and control orders are the only measures that may be considered by a State or
Territory Supreme Court when deciding whether there is a 'less restrictive measure'
than a CDO that would be effective in preventing the offender's unacceptable risk of
committing a serious Part 5.3 offence.
20. The conditions of such orders can be tailored to meet the specific risks posed by an
individual offender and are subject to the safeguard that the Court must be satisfied
that each condition is reasonably necessary, and reasonably appropriate and adapted,
for the protective purpose of the relevant order.
Cumulative impact of PSOs and conditions
21. The amendments provide that, when considering whether the offender poses an
unacceptable risk of committing a serious Part 5.3 offence, the Court must have
regard to whether the offender is subject to a State or Territory PSO, and if so, the
conditions of that order (paragraph 105A.6B(1)(ha)). The Court must also consider
any conditions of a State or Territory PSO to which the offender is subject, when
determining whether conditions under an ESO or ISO are reasonably necessary, and
reasonably appropriate and adapted to address the risk posed by the person
(subsection 105A.7B(1A)).
22. Paragraph 105A.7A(1)(c) will require the Court to be satisfied, on the balance of
probabilities that each of the conditions and the combined effect of all of the
conditions to be imposed on the offender by the ESO is reasonably necessary, and
reasonably appropriate and adapted, for the purpose of protecting the community
from the unacceptable risk.
Additional safeguards
23. The amendments also introduce the following additional safeguards.
24. Section 105A.15A provides that in relation to ESO or ISO proceedings the Court
may stay proceedings or make an order requiring the Commonwealth to bear all or
part of the reasonable costs and expenses of the offender's legal representation for
the proceeding, if an offender is otherwise unable to engage legal representation due
to circumstances beyond their control.
25. Subsection 105A.7B(2A) ensures that a Court cannot impose a condition under an
ESO which would require an offender to remain at a specified premises for more than
12 hours in a 24 hour period. This is to ensure that an ESO or ISO does not impose
conditions akin to detention.
Human rights implications
26. The amendments to the Bill engage or promote the following rights:
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• the right to life in Article 6 of the International Covenant on Civil and
Political Rights (ICCPR)
• the right to freedom from arbitrary detention and the right to liberty and
security of the person in Article 9 of the 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 freedom of movement under Article 12 of the ICCPR
• the right to freedom from arbitrary or unlawful interference with privacy in
Article 17 of the ICCPR
• the right to freedom of expression in Article 19 of the ICCPR, and
• the right to freedom of association in Article 22 of the ICCPR.
The right to life in Article 6 of the ICCPR
27. The right to life in Article 6 of the ICCPR places a positive obligation on States to
protect individuals from unwarranted actions by private persons. The obligation to
protect life requires preventative operational measures to protect individuals whose
safety may be compromised in particular circumstances, such as by a terrorist act.
28. The amendments extend the control order and ESO schemes to provide that persons
in non-prison custody who pose an unacceptable risk of committing a serious Part 5.3
offence (offences related to terrorism which are punishable by at least seven or more
years' imprisonment) may be subject to an ESO or control order. Given non-prison
custody can be less restrictive than custody in a prison, there is the risk that a terrorist
offender may cause serious harm to the community if appropriate controls and
conditions are not available.
29. The scheme promotes the right to life by ensuring there is an appropriate mechanism
for managing terrorist offenders in non-prison custody who pose a risk of carrying
out actions that are inconsistent with the right to life.
The right to security of the person in Article 9 of the ICCPR
30. The right to security of the person in Article 9 of the ICCPR requires States to take
reasonable and appropriate measures to protect a person's physical security,
particularly where the Government knows or ought to know of the existence of a real
and imminent risk to the physical security of an identified individual or group of
individuals from the criminal acts of another party.
31. The amendments to the Bill ensure that individuals in non-prison custody, including
immigration detention, who pose a risk to the security of persons by carrying out acts
of violence (or encouraging others to do so) are effectively managed by an ESO or
control order to ensure the safety of the community.
8
32. The amendments therefore promote the right to security of the person by protecting
the community from a terrorist offender in non-prison custody committing a serious
Part 5.3 offence.
The right to freedom from arbitrary detention and the right to liberty of the person in
Article 9 of the ICCPR
33. The right to personal liberty and freedom from arbitrary detention is protected in
Article 9 of the ICCPR. It requires that persons not be subject to arrest and detention
except as provided for by law, and provided that neither the arrest nor the detention is
arbitrary. Detention is not arbitrary where, in all the circumstances, it is reasonable,
necessary and proportionate to achieving a legitimate objective. The United Nations
Human Rights Committee has stated that applying further restrictions on a person
who is already detained may engage Article 9.1
34. The amendments ensure that ESOs and control orders may commence and be
enforced while a person is in non-prison custody. The conditions of these orders will
enable appropriate supervision of an offender who poses an unacceptable risk of
committing a serious Part 5.3 offence. Due to the nature of non-prison custody
(including immigration detention), which may be administrative and less restrictive
than custody in a prison, it is necessary to ensure that the conditions of an ESO or
control order remain in force to address the risk of that individual causing serious
harm to the community.
35. Article 9(1) of the ICCPR provides that a person is not to be deprived of liberty
except on such grounds as are established by law. In relation to ESOs and control
orders, orders are authorised by, and operate in accordance with, the procedures
prescribed in Division 105A and as determined by a Court. Accordingly, the
amendments comply with the requirement in Article 9(1) that deprivation of liberty
not occur except in accordance with grounds and procedures prescribed by law.
36. The amendments also amend the CDO threshold to provide that, in considering less
restrictive measures to a CDO, the Court is only to consider Part 5.3 orders, such as
ESOs. Currently, the term 'less restrictive measure' is not defined in the Criminal
Code. As a result, the current provision allows a Court to potentially consider any
measure or action (or a combination of measures or actions) that it deems less
restrictive.
37. The amendment preserves the 'less restrictive measure' limb as a fundamental
safeguard in the CDO scheme. ESOs and control orders allow the Court to apply
conditions to manage the full spectrum of risk that terrorist offenders pose to the
Australian community, noting that under an ESO, a Court has the discretion to
impose any condition which it is satisfied is necessary to protect the community from
the risk posed by the offender. The conditions of ESOs and control orders can be
tailored to meet the specific risks posed by an individual offender and are subject to
the safeguard that the Court must be satisfied that each condition is reasonably
necessary, and reasonably appropriate and adapted, for the protective purpose of that
relevant order.
1
UN Human Rights Committee, General Comment 35: Article 9, Right to Liberty and Security of Person
(16 December 2014) [5].
9
38. Under an ESO, a Court will be able to impose any condition it considers meets this
threshold. This means that the Court could consider the full range of possible
conditions which fall short of the offender's continued detention, preserving the
broad discretion of the Court to consider a possible less restrictive measure.
39. The CDO scheme as amended is reasonably necessary and proportionate to achieving
the object of the scheme (to protect the community from serious Part 5.3 offences).
Detention would remain a last resort and other existing thresholds and safeguards in
Part 5.3 and the Bill still apply.
40. The amendments also include a safeguards to ensure that an ESO or ISO does not
impose conditions akin to detention.. Subsection 105A.7B(2A) provides that a
condition imposed on an offender as part of an ESO or ISO cannot require an
individual to remain at a specified premises for more than 12 hours in a 24 hour
period. Further, paragraph 105A.7A(1)(c) provides that a Court must consider each
individual condition of an ESO as well as the combined effect of all proposed
conditions of the ESO to ensure the necessity and proportionality of those conditions.
41. These amendments ensure that conditions under an ESO are appropriate in response
to the offender's risk, and do not impinge on the right to freedom from arbitrary
detention.
The right to be treated with humanity and dignity in Article 10 of the ICCPR
42. Article 10(1) of the ICCPR provides that all persons deprived of liberty shall be
treated with humanity and respect for the inherent dignity of the human person. The
amendments may be considered to engage this obligation as they may result in
additional restrictions being placed upon a person who is already detained in
non-prison custody.2
43. The amendments are consistent with this right, as the conditions which would be
imposed on an offender would be those that the Court considers are reasonably
necessary, appropriate and adapted to ensure the safety and protection of the
community. The conditions a Court may impose will be appropriate to the
circumstances and risk of each terrorist offender. This may include, for example,
conditions being placed on an offender within immigration detention that ensure the
safety of both the wider Australian community and those within the immigration
detention facility.
44. To the extent that the amendments engage rights under Article 10(1), these
limitations are reasonable, necessary and proportionate to protect the community
from serious Part 5.3 offences.
The right to freedom of movement under Article 12 of the ICCPR
45. The right to freedom of movement is protected in Article 12 of the ICCPR. One
component of the right is that people must be able to move freely within a country.
This right may be limited for the purpose of protecting national security, public
2
UN Human Rights Committee, General Comment 35: Article 9, Right to Liberty and Security of Person
(16 December 2014) [5].
10
order, public health or morals or the rights and freedoms of others, as permitted by
Article 12(3).
46. Subsections 105A.7B(2) and (3) outline a number of conditions that the Court may
impose as part of an ESO which may restrict the movement of a person who is being
detained in non-prison custody. This may include restricting an individual's
movement throughout a non-prison custody location, imposing a condition that they
must not be present at specified areas, or specified classes of areas or places.
47. The imposition of conditions under subsections 105A.7B(2) and (3) may restrict an
offender's freedom of movement, however, such restrictions are necessary to protect
the Australian community from serious Part 5.3 offences. The Court will decide
which conditions should be imposed to address the risk posed by the offender, and
must be satisfied that the condition is reasonably necessary, and reasonably
appropriate and adapted, for the purpose of protecting the community from the
unacceptable risk of the offender committing a serious Part 5.3 offence. The variation
safeguard in subsection 105A.9B(1A) further ensures that restrictions are necessary
by requiring the AFP Minister to make an application to vary an ESO where a
condition is no longer reasonably necessary, or reasonably appropriate and adapted,
for the purpose of protecting the community.
48. This is in addition to safeguards that already exist in the Bill, including the
independent role of the judiciary to ensure that any conditions which affect a
person's freedom of movement will be imposed consistently with Article 12 of the
ICCPR, on the grounds of national security. This is further enforced through the
requirement for the Court to assess the combined effect of all the proposed conditions
of the ESO (paragraph 105A.7A(1)(c)), and the restriction on ordering an offender to
remain at a specified premises for no more than 12 hours in a 24 hour period
(subsection 105A.7B(2A)).
The right to a fair trial and fair hearing under Article 14 of the ICCPR
49. Article 14(1) of the ICCPR provides that, in the determination of a person's rights
and obligations in a suit at law and in cases of criminal charge, everyone shall be
entitled to a fair and public hearing by a competent, independent and impartial
tribunal established by law. The amendments may be regarded as engaging these
rights because the amendments allow for ESOs and control orders to be in force in
relation to a person detained in non-prison custody. An individual who is detained in
non-prison custody may therefore need to engage with the Court in order to vary an
order, exercising their rights of appeal or go through a review process for an ESO.
50. The Bill contains safeguards that promote the right to a fair trial and fair hearing
under Article 14 of the ICCPR, including that the Court may stay proceedings or
make an order requiring the Commonwealth to bear all or part of the reasonable costs
and expenses of the offender's legal representation for an ESO proceeding, if the
offender is otherwise unable to engage a legal representative due to circumstances
beyond their control (section 105A.15A). Subsection 104.5(1C) provides that a
person who is detained in custody has the right to attend court on the day a Court
decides an application for a control order. Additionally, existing safeguards have
been amended to ensure the personal service of people in custody. Section 104.28B
(for control orders) and section 105A.15 (for ESOs) provide that a document can be
11
taken to have been served on an offender if it is given to either their legal
representative or the head of the facility where they are being detained, such as the
head of an immigration detention facility. The provision requires the recipient of the
document to provide it to the offender as soon as reasonably practicable. This ensures
that all offenders, including those in non-prison custody, have access to any
information relating to an application made in relation to them.
51. The UN Human Rights Committee provides that access to administration of justice
must effectively be guaranteed in all such cases to ensure that no individual is
deprived, in procedural terms, of their right to claim justice. This right is not limited
to citizens and extends regardless of status of nationality or statelessness.3
52. Non-prison custody includes immigration detention facilities. The immigration
detention network has long-established processes for detainees to request and access
legal assistance. The Department of Home Affairs is committed to ensuring detainees
have access to a variety of communication avenues to maintain contact with their
support networks and legal representation and facilitates a wide range of
communication options including computers, internet, landline and mobile phones,
meeting rooms, writing material and fax machines. A detainee is able to contact and
appoint a legal representative at any time to assist on their behalf. If a detainee and
legal representative wish to meet in person, there are documented procedures in place
to facilitate such visits.
The right to freedom from arbitrary or unlawful interference with privacy in Article 17
of the ICCPR
53. 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 are
non-arbitrary. In order for limitations to be non-arbitrary, they must be aimed at a
legitimate objective and be reasonable, necessary and proportionate to that objective.
54. The amendments may be regarded as engaging this right as they provide that ESOs
may apply in a broader range of settings, such as non-prison custody like
immigration detention. Under the Bill, a Court can impose conditions under an ESO
that impact an individual's right to privacy in a broader range of situations, including
that the offender be subject to electronic monitoring, provide information to specific
authorities, submit to drug and/or alcohol testing, allow themselves to be
photographed, allow fingerprints to be taken, report to specified authorities at
specified times and places, allow visits to confirm compliance with a curfew
condition, and allow a police officer to search them or their premises and seize items
found. When making a condition, the Court must be satisfied that these conditions
are reasonably necessary, and reasonably appropriate and adapted, for the purpose of
protecting the community from the unacceptable risk of the offender committing a
serious Part 5.3 offence. The protection of the community from serious Part 5.3
offences is the paramount consideration for the Court in determining what conditions
to impose in an ESO.
3
UN Human Rights Committee, General Comment 32: Article 14, Right to Equality before Courts and
Tribunals and to Fair Trial (23 August 2007) [9].
12
55. 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 introduce the requirement under
subsection 105A.9B(1A) for the AFP Minister to make an application to vary or
remove a condition if they are satisfied that the condition is no longer reasonably
necessary, or reasonably appropriate and adapted, for the purpose of protecting the
community. This safeguard ensures that any conditions which may impact an
individual's privacy are reasonable, necessary and proportionate to the legitimate
objective of protecting the community from the unacceptable risk of the offender
committing a serious Part 5.3 offence. This safeguard ensures that any limitation or
restriction of an individual's right to freedom of expression under the Bill is
consistent with Article 17.
The right to freedom of expression under Article 19 of the ICCPR
56. Article 19(2) of the ICCPR provides that everyone shall have the right to freedom of
expression, which includes the freedom to seek, receive and impart information and
ideas of all kinds, regardless of frontiers, in writing or in print, in the form of art, or
through any other media of the person's choice. Article 19(3) provides that this right
may be subject to certain restrictions, but only as are provided by law and are
necessary for respect of the rights or reputation of others, for the protection of
national security or of public order, or of public health and morals.
57. The amendments may be regarded as engaging this right because they provide that
ESOs may apply in a broader range of settings, such as non-prison custody like
immigration detention. Under the Bill, a Court may impose conditions that limit the
individuals or classes of individuals with whom an offender may communicate, or
proscribe the means by which an offender may communicate. This limitation of the
right of expression seeks to protect the Australian community from the risk of the
person committing a serious Part 5.3 offence, and is therefore necessary for the
protection of national security.
58. In additional to the safeguards detailed in the EM to the Bill, the amendments will
also require the AFP Minister to seek a variation of an ESO where satisfied that
conditions are no longer reasonably necessary, or reasonably appropriate and
adapted. This will further ensure that ESO conditions remain proportionate to the risk
posed by the offender to the community.
The right to freedom of association under Article 22 of the ICCPR
59. Article 22 of the ICCPR provides that everyone shall have the right to freedom of
association with others. This right may be limited when prescribed by law and when
necessary in the interests of national security, public safety and public order, or for
the protection of public health, morals or the rights and freedoms of others, as
permitted by Article 22(2). As part of an ESO or ISO, under the Bill, a Court may
impose a condition that an offender not communicate or associate with specified
individuals or classes of individuals.
60. The amendments may be regarded as engaging this right as they provide that ESOs
may apply in a broader range of settings, such as non-prison custody like
immigration detention. Under the Bill, a Court may impose, as part of an ESO or
13
ISO, conditions that an offender not communicate or associate with specified
individuals or classes of individuals. This limitation to the right of association is
necessary in the interest of national security and public safety. To the extent that the
amendments limit the rights of offenders under Article 22, the introduction of the
requirement under subsection 105A.9B(1A) for the AFP Minister to make a variation
application ensures any limitation is reasonably necessary, and reasonably
appropriate and adapted, ensuring it is consistent with Article 22.
Conclusion
61. While the amendments engage a range of human rights, they are compatible with
human rights in that they promote some rights and to the extent that they limit some
rights, those limitations are reasonable, necessary and proportionate in achieving a
legitimate objective.
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NOTES ON AMENDMENTS
Schedule 1 - Extended Supervision Orders
Part 1 - Main amendments
Criminal Code Act 1995
Overview
1. The Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders)
Bill 2020 establishes an ESO scheme for high-risk terrorist offenders who continue
to pose an unacceptable risk to the community at the expiration of their custodial
sentence. The ESO scheme will form part of the HRTO regime in Part 5.3 of the
Criminal Code.
2. The amendments seek to address potential issues which may arise in the practical
application of the measures to manage the risk posed by terrorist offenders. In
particular, the amendments would clarify how Part 5.3 orders operate where a person
is, or becomes, subject to non-prison custody.
3. The amendments also clarify that ESOs and control orders are the only measures that
may be considered by a State or Territory Supreme Court when deciding whether
there is a 'less restrictive measure' to a CDO that would be effective in preventing
the offender's unacceptable risk of committing a serious Part 5.3 offence.
4. The amendments introduce a number of additional safeguards to those already in the
Bill. These additional safeguards will:
• provide the ability for the Court to make an order to stay the proceedings or
order the Commonwealth to bear all or part of the reasonable costs and
expenses of the offender's legal representation for ESO or ISO proceedings.
• require the Court when making an ESO to take into account whether the
person is also subject to a PSO under State or Territory legislation, as well as
the cumulative impact on the person of multiple PSOs. This includes any type
of PSO scheme within a State or Territory and is not limited to those relating
to counter-terrorism.
• require the Court to assess, and be satisfied of, the necessity and
proportionality of each individual condition of an ESO application, as well as
the combined effect of all the proposed conditions of the ESO.
• provide that a Court cannot order an offender to remain at a specified premises
for more than 12 hours in a 24 hour period. This is to ensure that an ESO or
ISO does not impose conditions akin to detention.
15
Items 1-3 - Subsection 100.1(1) of the Criminal Code
5. Items 1-3 amend the definition of detained in custody in subsection 100.1(1) by
introducing three new definitions of detained in custody, detained in custody in a
prison, and detained in non-prison custody.
• A person is detained in custody (new subsection 100.1(3A)) if the person is
detained in custody under a law of the Commonwealth, a State or a Territory
(this broader concept would encompass both prison and non-prison custody, as
defined below).
• A person is detained in custody in a prison (new subsection 100.1(3B)) if the
person is detained in custody in a gaol, lock-up or remand centre, including
under a CDO or interim detention order (IDO). However, a person is not
detained in custody in a prison if the person is in immigration detention in a
gaol, lock-up or remand centre.
• A person is detained in non-prison custody (new subsection 100.1(3C)) if the
person is detained in custody, but is not detained in custody in a prison. Item 3
includes a note that an example of a person who is detained in non-prison
custody is a person who is in immigration detention (whether in a goal, lock-
up, remand centre or otherwise).
6. The new definitions apply across the provisions in Part 5.3, including the provisions
introduced by the Bill. There are instances where references to a person being
detained in custody should encompass both detention in a prison (a goal, lock-up or
remand centre, including under a CDO or IDO) as well as detention in non-prison
custody, such as immigration detention. In other cases, such references should only
apply where a person is detained in custody in a prison.
7. Item 3 also inserts a heading before subsection 100.1(2) and at the end of the
subsection to improve the readability of the legislation, consistent with current
drafting practices.
Item 4 - Subsection 104.2(5) of the Criminal Code
8. Item 4 repeals the note at the end of subsection 104.2(5) and inserts a new note that
clarifies when an ICO commences for a person who is detained in custody.
9. The new note provides that an ICO in relation to a person who is detained in custody
in a prison does not begin until the person ceases to be detained in custody in a
prison.
Items 5-9 - Subsections 104.5(1D) and 104.5(1E) of the Criminal Code
10. Items 5 to 9 amend subsections 104.5(1D) and 104.5(1E) to provide that an ICO
cannot come into force while a person is detained in custody in a prison. These
subsections provide rules relating to the period an ICO is in force.
11. Item 5 amends subsection 104.5(1D) to provide that an ICO that is served on a
person does not commence while the person is detained in custody in a prison, or
16
while an ESO or ISO is in force in relation to that person. The item amends the
existing reference to 'detained in custody' to instead refer to 'detained in custody in a
prison' as per the definition inserted into section 100.1.
12. Item 6 inserts a new note for subsection 104.5(1D) that states that an ICO for a
person detained in non-prison custody commences when that order is served
personally on the person. An ICO could come into force for a person in non-prison
custody, such as immigration detention.
13. Items 7 and 8 amend subsection 104.5(1E) to provide that an ICO, that has been
served on a person while they are detained in custody in a prison or while that person
is under an ESO or ISO, commences when the person ceases to be detained in
custody in a prison, or on the conclusion of the ESO or ISO. Item 8 amends the
existing reference to 'detained in custody' to instead refer to 'detained in custody in a
prison' as per the definition inserted into section 100.1.
14. Item 9 inserts a new note for subsection 104.5(1E) that clarifies that a person
detained in non-prison custody is taken to be in the community in accordance with
section 105A.18AA. This means that an ICO can come into force for a person in non-
prison custody, such as immigration detention.
Items 10-11 - Subsection 104.15(5) of the Criminal Code
15. Item 10 amends subsection 104.15(5) to provide that, if an ICO that has not come
into force is confirmed, then the confirmed control order begins when the person is
released from custody in a prison, or when their ESO or ISO ends. The provision
currently refers broadly to custody and the amendments provide clarity as to what
type of custody using the new definitions introduced by items 1 to 3 (the 'detained in
custody' and related definitions). Subsection 104.15(5) applies only to custody in a
prison, and would not apply, for example, to a person in immigration detention.
16. Item 11 inserts a new note at the end of subsection 104.15(5) that states that persons
detained in non-prison custody are taken to be in the community. A person detained
in non-prison custody, for example in immigration detention, is taken to be in the
community and an ICO could commence, as long as they are not subject to an ESO
or ISO.
Items 12-13 - Subsection 104.27(2) of the Criminal Code
17. Item 12 amends the numbering of section 104.27, reflecting the insertion of new
subsection 104.27(2), as discussed below. Subsection 104.27(1) provides that a
person commits an offence if they are subject to a control order and they contravene
that order.
18. Item 13 inserts a new subsection 104.27(2) that ensures that a person who is detained
in non-prison custody is not taken to have contravened an order if the contravention
occurred because the person is detained in non-prison custody. Subsection 104.27(2)
means that a person is not subject to criminal liability for breaching an order where
compliance with obligations, prohibitions or restrictions of their control order is not
possible because the person is in non-prison custody, such as immigration detention.
The note for subsection 104.27(2) inserted by item 13 states that the defendant bears
17
an evidential burden to prove they were unable to comply with the order due to being
detained in non-prison custody.
Item 14 - Section 104.28B of the Criminal Code
19. Item 14 repeals and replaces section 104.28B to ensure that service of documents in
relation to relevant proceedings can occur for people detained in all forms of custody.
Currently, the provision only outlines arrangements for a person detained in prison
custody. Section 104.28B provides that documents requiring personal service can be
provided to the person's legal representative or the head of the facility in which the
person is detained, such as the head of an immigration detention facility. The
recipient of the document must give the document to the detainee personally as soon
as reasonably practicable.
Item 15 - Subsection 105.26(5) of the Criminal Code
20. Section 105.26 outlines how a person is to be released from preventative detention
and in what circumstances they are considered to be released from detention.
Subsection 105.26(5) clarifies that a person is released from detention under a
preventative detention order even if they are then immediately taken into custody on
some other basis.
21. Item 15 amends paragraph 105.26(5)(b) to clarify that a person will be taken to be
released from detention under a preventative detention order where the person has
been immediately taken into non-prison custody, such as immigration detention.
Item 16 - Section 105A.2 of the Criminal Code
22. Item 16 amends the definition of prison in section 105A.2 to clarify that the
definition is limited to the concept of where a person is detained in custody in a
prison (and not other forms of detention). Prison, as amended, is defined to include
any gaol, lock-up or remand centre.
23. Item 16 amends the definition to include remand centre and remove reference to
'other places of detention'. The effect of this amendment is that provisions referring
to being detained in custody in a prison will not include any other forms of detention,
such as immigration detention.
Items 17-30 - Section 105A.3A of the Criminal Code
24. Section 105A.3A sets out the circumstances in which a PSO may be made in relation
to an offender who meets the criteria in section 105A.3 (that is, persons who have
been convicted of a specified terrorism offence and who will be at least 18 years old
when the sentence for that specified terrorism offence ends).
25. Items 17 to 30 amend references to detained in custody to clarify that eligibility for a
PSO is only preserved where a person is (or was) detained in custody in a prison.
These amendments ensure that a person's eligibility for a PSO is not preserved only
as a result of the person being detained in non-prison custody.
18
Item 31 - Section 105A.4 of the Criminal Code
26. Section 105A.4 relates to the treatment of an offender detained in a prison under a
CDO, noting that such a person would no longer be serving a term of imprisonment
and should be treated accordingly. Item 31 amends this section for consistency, to
align it with the new definition of detained in custody in a prison.
Items 32-33 - Subsection 105A.5(3) of the Criminal Code
27. Section 105A.5 outlines the process for the AFP Minister, or a legal representative of
the Minister, to apply for a PSO. Subsection 105A.5(3) sets out the requirements of
the application for a PSO. Item 32 amends the subsection to allow for the inclusion
of an additional subparagraph 105A.5(3)(d)(iv). Item 33 inserts subparagraph
105A.5(3)(d)(iv) to provide that, if the offender is subject to a State or Territory PSO,
the application must include a copy of that order.
28. This ensures that the Court is aware of any State or Territory PSOs (including those
which are not specifically related to terrorism) that are in place in respect of an
offender when considering an application for a Commonwealth PSO. The Court is
required to consider any State or Territory PSO at two stages of an application for a
Commonwealth PSO - firstly, when considering the offender's risk of committing a
serious Part 5.3 offence, and secondly, when considering whether a condition to be
included in an ESO is reasonably necessary and reasonably appropriate and adapted
for the purpose of protecting the community from that risk.
Item 34 - Subsection 105A.6(4) of the Criminal Code
29. Section 105A.6 outlines the appointment of and assessment by relevant experts
during court proceedings for an application for a PSO under section 105A.5.
Subsection 105A.6(4) outlines that the relevant expert conducting the assessment of
risk of the offender committing a serious Part 5.3 offence must provide a report of the
assessment to the Court, the AFP Minister and the offender. Subsection 105A.6(4)
contains a note about giving documents to an offender who is in prison.
30. Item 34 amends the note to subsection 105A.6(4) to clarify that it refers to a person
detained in custody generally, and as such it will include both a person in non-prison
custody, such as immigration detention, and a person in custody in a prison.
Section 105A.15 outlines the personal service of documents on offenders in custody.
Item 35 - Subsection 105A.6B(1) of the Criminal Code
31. Section 105A.6B sets out the matters which a Court must have regard to when
considering if an offender poses an unacceptable risk of committing a serious Part 5.3
offence as part of an application for a PSO. Item 35 amends subsection 105A.6B(1)
by inserting paragraph (h) to provide that, when considering whether the offender
poses an unacceptable risk of committing a serious Part 5.3 offence, the Court must
have regard to whether the offender is subject to a State or Territory PSO, and if so,
the conditions of that order.
32. This ensures that the Court considers whether any risk posed by an offender is an
acceptable risk, or no risk at all, due to the effect of any State or Territory PSOs. This
19
provision applies to any State and Territory PSOs, and is not limited to those which
specifically relate to terrorism.
Items 36-37 - Subsection 105A.7(1) of the Criminal Code
33. Section 105A.7 outlines the circumstances for how a Court can make a CDO.
34. Item 36 amends subsection 105A.7(1) to clarify the 'less restrictive measure'
threshold for CDO applications. Paragraph 105A.7(1)(c) provides that to make a
CDO the Court must be satisfied that there is no less restrictive measure available
under Part 5.3 of the Criminal Code that would be effective in preventing the
unacceptable risk of the offender committing a serious Part 5.3 offence.
35. Item 36 clarifies that the only less restrictive measure a Court can consider are orders
under Part 5.3 of the Criminal Code, such as an ESO. The conditions of such orders
can be tailored to meet the specific risks posed by an individual offender and are
subject to the safeguard that the Court must be satisfied that each condition is
reasonably necessary, and reasonably appropriate and adapted, for the protective
purpose of the relevant order. The term 'less restrictive measure' is not defined in the
Criminal Code and without this clarification, the Court could potentially consider
any measure or action (or a combination of measures or actions) that it considers less
restrictive.
36. Item 36 also repeals the notes under subsection 105A.7(1) and substitutes two new
notes. Note 1 states that the rules of evidence and procedure for civil matters apply
when the Court has regard to matters in accordance with section 105A.6B (which
provides that when making a PSO a Court must have regard to a range of matters
when deciding the application for the order). Note 2 states that an example of a less
restrictive measure available under Part 5.3 is an ESO, and clarifies that a Court can
make an ESO as a less restrictive measure even if a CDO was applied for.
37. Item 37 amends the note to subsection 105A.7(4), which relates to a CDO being
suspended if the offender is detained in custody other than as a result of the CDO.
The note has been amended for consistency with the definition of detained in custody
in a prison and makes clear that a CDO is suspended where an individual is detained
in custody in a prison other than as a result of the CDO, and refers to section
105A.18C. Section 105A.18C provides that PSOs are suspended if a person is
detained in custody in a prison. This amendment clarifies subsection 105A.7(4) and
ensures consistency with section 105A.18C.
Item 38 - Subsection 105A.7A(1) of the Criminal Code
38. Subsection 105A.7A(1) sets out the circumstances in which a Court may order an
ESO. Item 38 replaces paragraph 105A.7A(1)(c) to provide that a Court must be
satisfied on the balance of probabilities that each condition to be included in the ESO
and the combined effect of all the conditions, is reasonably necessary, and reasonably
appropriate and adapted, for the purpose of protecting the community from the
unacceptable risk of the offender committing a serious Part 5.3 offence. Prior to the
amendment the paragraph required the Court to be satisfied in respect of each
condition, and did not expressly require consideration of the combined effect of all
conditions.
20
39. This ensures that an offender is not subject to a combination of conditions where the
cumulative effect is not proportionate to the risk posed by an offender.
Item 39 - Subsection 105A.7A(4) of the Criminal Code
40. Item 39 amends the note to subsection 105A.7A(4), which relates to an ESO being
suspended if an offender is detained in custody. Item 39 amends the note to clarify
that an ESO is only suspended where an individual is detained in custody in a prison,
and refers to section 105A.18C (which provides that PSOs are suspended if a person
is detained in custody in a prison). An ESO would continue to be in force if a person
is detained in non-prison custody, such as in immigration detention.
Items 40-42 - Section 105A.7B of the Criminal Code
41. Section 105A.7B sets out the conditions of an ESO and ISO that a Court may
impose. Item 40 replaces subsection 105A.7B(1) to provide that the Court may only
impose conditions that it is satisfied on the balance of probabilities are reasonably
necessary, and reasonably appropriate and adapted, for the purpose of protecting the
community from the unacceptable risk of the offender committing a serious Part 5.3
offence. The Court must be satisfied in relation to both the individual conditions as
well as the combined effect of all conditions. Prior to the amendment, the subsection
did not explicitly require a Court's consideration of the combined effect of all
conditions of an ESO or ISO when imposing the conditions.
42. Item 40 also inserts subsection 105A.7B(1A) which provides that when imposing
conditions a Court must also consider any conditions of a State or Territory PSO to
which the offender is subject. As noted above, this would include State or Territory
PSOs which are not specifically related to terrorism.
43. This ensures that the Court must consider the effect of the conditions imposed on a
person under a State or Territory PSO as part of considering if conditions to be
imposed under the ESO or ISO are reasonably necessary, and reasonably appropriate
and adapted for the purpose of protecting the community from the unacceptable risk
of the offender committing a serious Part 5.3 offence. This will assist with ensuring
that the ESO or ISO conditions and any State or Territory conditions are
complementary and operable together.
44. Item 41 inserts subsection 105A.7B(2A) to provide that the Court cannot impose a
condition under an ESO or ISO that requires an offender to remain at specified
premises for more than 12 hours within any 24 hour period. This is a safeguard to
ensure an ESO or ISO does not impose conditions akin to detention.
45. Item 42 amends paragraph 105A.7B(3)(c) to clarify that a condition requiring a
person to remain at a specified premises is subject to subsection 105A.7B(2A) and
cannot require a person to remain at specified premises for more than 12 hours in a
24 hour period.
Item 43 - Subsection 105A.9(4) of the Criminal Code
46. Item 43 amends the note to subsection 105A.9(4), which relates to an IDO being
suspended if an offender is detained in custody other than as a result of the IDO.
21
Item 43 amends the note for consistency with the definition of detained in custody in
a prison and makes clear that an IDO is suspended where an individual is detained in
custody in a prison other than as a result of the IDO and refers to section 105A.18C
(which provides that a PSO is suspended if a person is detained in custody in a
prison). For clarification, due to the nature of an IDO, an IDO can only be in effect if
the offender who is subject to the order is detained in custody in a prison.
Item 44 - Subsection 105A.9A(7) of the Criminal Code
47. Item 44 amends the note to subsection 105A.9A(7), which refers to an ISO being
suspended if an offender is detained in custody. Item 44 amends the note to clarify
that an ISO is only suspended where an individual is detained in custody in a prison,
and refers to section 105A.18C (which provides that PSOs are suspended if a person
is detained in custody in a prison). An ISO would continue to be in force if a person
is detained in non-prison custody, such as immigration detention.
Items 45-49 - Section 105A.9B of the Criminal Code
48. Items 45 to 49 amend section 105A.9B which relates to applications to vary ESOs
and ISOs. Item 45 inserts a new subsection 105A.9B(1A) that provides that the AFP
Minister must apply to a Supreme Court of a State or Territory to remove or vary an
ESO or ISO condition if the Minister is satisfied that the condition it is no longer
reasonably necessary, or reasonably appropriate and adapted for the purpose of
protecting the community from the unacceptable risk of the offender committing a
serious Part 5.3 offence. For example, if the Minister is aware of circumstances that
mean the Minister is no longer satisfied that an ESO condition is no longer
reasonably necessary, or reasonably appropriate and adapted, such as entry into
immigration detention, then the Minister must apply to vary or remove the relevant
condition.
49. Note 1 to subsection 105A.9B(1A) clarifies that the AFP Minister (or their legal
representative) can include the addition of new conditions to the order in the same
application. Note 2 states that a copy of the application must be given to the offender
under section 105A.14A (which provides the requirements for providing offenders
with copies of applications made by the AFP Minister, or a legal representative of the
AFP Minister, to a Supreme Court).
50. Subsections 105A.9B(1) and (2) outline who can apply to vary an ESO or ISO in
relation to a terrorist offender by adding, varying or removing one or more conditions
mentioned in section 105A.7B. Item 46 amends the title of subsections 105A.9B(1)
and (2) to read 'who may otherwise apply'.
51. Item 47 provides that subsections 105A.9B(1) and (2) are subject to subsection (1A),
described above. Persons who may otherwise apply for a condition of an ESO or ISO
to be varied or removed include the AFP Minister or a legal representative of the
AFP Minister, or the terrorist offender or their legal representative.
52. Subsection 105A.9B(2) outlines that an application must be made to the Supreme
Court of the State or Territory where the offender resides. Item 48 amends the
subsection to include both applications made under subsections (1) and (1A).
22
53. Subsection 105A.9B(3) outlines what an application for a variation must contain.
Item 49 amends subsection 105A.9B(3) to also include applications made under
subsection (1A), described above.
Item 50 - Section 105A.9C of the Criminal Code
54. Section 105A.9C sets out the threshold for varying an ESO or ISO (other than by
consent). Item 50 amends subsection 105A.9C(1) to reflect that the Court can also
consider applications made in accordance with new subsection 105A.9B(1A). If an
application has been made in accordance with subsection (1A), the Court must be
satisfied on the balance of probabilities that each of the conditions being added and
varied is reasonably necessary, and reasonably appropriate and adapted (or not
reasonably necessary, appropriate and adapted if being removed), for the purpose of
protecting the community from the unacceptable risk of the offender committing a
serious Part 5.3 offence.
Items 51-52 - Paragraph 105A.10(1B)(c) of the Criminal Code
55. Subsection 105A.10(1B) provides for how an application for review of a PSO must
be made.
56. Items 51 and 52 amend paragraph 105A.10(1B)(c) to clarify that an ESO is only
suspended where an individual is detained in custody in a prison.
Items 53-54 - Section 105A.15 of the Criminal Code
57. Section 105A.15 outlines the process for giving documents to terrorist offenders who
are detained. Items 53 and 54 amend this provision to ensure it will apply where an
offender is either detained in custody in a prison or detained in non-prison custody.
58. Item 53 amends the heading of section 105A.15 by omitting the reference to 'prison'
and substituting 'custody'. The amended heading reads 'giving documents to terrorist
offenders who are in custody', to clarify that the provision relates to both prison and
non-prison custody.
59. Item 54 amends subsection 105A.15(1) by omitting the reference to 'prison' and
substituting 'custody', meaning it will apply to both prison and non-prison custody.
Subsection 105A.15(1) provides that a document is taken to be given to an offender
who is detained in custody if it is given to their legal representative. Further, item 54
amends paragraph 105A.15(1)(b) to include references to both 'prison' and 'other
facility in which the offender is detained'. This paragraph provides that if the
offender does not have a legal representative, the documents can be given to the chief
executive officer (however described) of the prison or facility in which the offender
is detained. For example, if an offender is detained in an immigration detention
facility, the documents can be given to the chief executive officer of that facility.
Item 55 - Subsection 105A.15A(1) of the Criminal Code
60. Section 105A.15A outlines the circumstances in which a Court can stay proceedings
or order the Commonwealth to pay all or part of the reasonable costs and expenses of
the offender's legal representation for the proceeding, where an offender is otherwise
23
unable to engage legal representation due to circumstances beyond their control.
Item 55 amends paragraph 105A.15A(1)(a) to remove reference to a CDO
proceeding, and substitute with a PSO proceeding.
61. A PSO proceeding is defined at 105A.2 to mean a proceeding under Subdivision C,
CA, CB or D. While an appeal of a PSO is not a post sentence order proceeding, as it
is a proceeding under Subdivision E, section 105A.15A is available in an appeal
proceeding because paragraph 105A.17(2)(a) provides that generally, the court of
appeal has all the powers, functions and duties that the Supreme Court has in relation
to the relevant post-sentence order proceedings.
62. The effect of this amendment is that, if the Court is satisfied that the requirements of
section 105A.15A are met, it may order that the Commonwealth bear all or part of
the reasonable costs and expenses of an offender's legal representation for an ESO or
ISO proceeding, as well as for a CDO or IDO proceeding (including a review or
appeal proceeding).
Items 56-58 - Section 105A.18 of the Criminal Code
63. Item 56 amends the heading for section 105A.18 to be 'consequences of sentences
ending or orders ceasing to be in force', rather than 'consequences of release of
terrorist offender' to better reflect the effect of this section.
64. Items 57 and 58 amend section 105A.18 to provide that for the purposes of PSO
proceedings, a person detained in custody in a prison serving a sentence of
imprisonment (item 57 and paragraph 105A.18(2)(a)) or in relation to whom a PSO
is in force despite being detained in prison (item 58 and paragraph 105A.18(2)(b))
remains a terrorist offender. Items 57 and 58 clarify that the provision applies only in
relation to custody in a prison.
Item 59 - Section 105A.18AA of the Criminal Code
65. Item 59 creates a new provision to clarify that persons who are detained in non-
prison custody, such as immigration detention, are taken to be in the community for
the purposes of Part 5.3. The effect of this provision is that a terrorist offender could
be subject to an ESO in circumstances where they are taken from custody in a prison
into non-prison custody, such as immigration detention.
Item 60 - Subsection 105A.18A(3) of the Criminal Code
66. Section 105A.18A provides that it is an offence to contravene an ESO or an ISO.
Item 60 creates a new subsection 105A.18A(3) which provides that a person who is
detained in non-prison custody is not taken to have contravened an ESO or ISO if the
contravention occurred because the person is detained in non-prison custody.
67. Subsection 105A.18A(3) means that a person is not subject to criminal liability for
breaching an order where compliance with a condition of their ESO or ISO is not
possible because the person is in non-prison custody, such as immigration detention.
The note following this subsection clarifies that the defendant bears an evidential
burden in relation to this matter.
24
Items 61-65 - Section 105A.18C of the Criminal Code
68. Section 105A.18C outlines the consequences of an offender being released from
detention for PSOs. Items 61 and 62 amend the heading of section 105A.18C and the
subheading of subsections (1) and (2) to read 'Effect of prison detention on post-
sentence orders', clarifying that the provision only applies where an offender is
released from detention in a prison.
69. Item 63 amends subsection 105A.18C(1) for consistency with the new definition of
detained in custody in a prison, and makes clear that the provision applies only to a
person detained in custody in a prison. Subsection 105A.18C(1) provides that a CDO
or IDO is suspended during the period that the person is detained in custody in a
prison other than as a result of the order. Item 64 amends the note for consistency
with the definition of detained in custody in a prison.
70. Item 65 amends subsection 105A.18C(2) to clarify that the provision applies only to
a person detained in custody in a prison. The subsection provides that an ESO or ISO
is suspended during the period that the offender is detained in custody in a prison,
and a relevant ESO or ISO would not be suspended where an offender is detained in
non-prison custody, such as immigration detention.
Items 66-67 - Section 105A.23 of the Criminal Code
71. Section 105A.23 provides the circumstances when a Court must warn a person about
PSOs during sentencing for certain offences.
72. Subsection 105A.23(1A) provides that the Court must warn the person that an
application may be made under this division for either a CDO or an ESO at the end
of a person's sentence. Item 66 clarifies that the CDO will require a person to be
detained in custody in a prison at the end of their sentence, in line with the definitions
added to section 100.1.
73. Item 67 amends subparagraph 105A.23(1A)(b)(i), which currently provides that if a
person is being warned that an application may be made for a CDO, the Court must
inform them that the application may be made before the end of the sentence for their
offence, or before the end of any later sentence if the person is continuously detained
in custody. Item 67 clarifies that the provision relates to detention in custody in a
prison.
Items 68-70- Section 106.11 of the Criminal Code
74. Section 106.11 sets out the application of amendments made under this Bill. Item 68
inserts a new subsection 106.11(1A) which provides that the amendments to
section 104.27 (that a person will not commit the offence of breaching a control order
if the breach occurs because they are detained in non-prison custody) will only apply
to conduct occurring after this section commences.
75. Item 69 amends subsection 106.11(3) to provide that the amendments to
Division 105A made by the Bill will apply to a person who is detained in custody in
a prison and their sentence of imprisonment begins on or after the day the provisions
25
commence. Item 70 amends the note to subsection 106.11(3) to refer to the definition
of detained in custody in a prison in subsection 100.1(1).
Intelligence Services Act 2001
Item 71 - paragraph 29(1)(bbaaa) of the Intelligence Services Act 2001
76. Section 29 outlines the functions of the Parliamentary Joint Committee on
Intelligence and Security (the Committee). Paragraph 29(1)(cb) provides the existing
requirement for the Committee to review Division 105A - it requires the Committee
to complete the review by 7 December 2021 (6 years after the day the Criminal Code
Amendment (High Risk Terrorist Offenders) Act 2016 received the Royal Assent).
77. Item 71 repeals paragraph 29(1)(cb) and inserts a new paragraph 29(1)(bbaaa) which
provides that the Committee may commence a review of Division 105A of the
Criminal Code within 12 months after the Independent National Security Legislation
Monitor (the Monitor) completes a review into the operation, effectiveness and
implications of the Division. The timing of the Committee's review is being adjusted
to ensure the review follows the Monitor's review.
78. Under subsection 6(1C) of the Independent National Security Legislation Monitor
Act 2010, the Monitor is to complete a review of Division 105A as soon as
practicable after 7 December 2021 (5 years after the day the Criminal Code
Amendment (High Risk Terrorist Offenders) Act 2016 received the Royal Assent).
Surveillance Devices Act 2004
Item 72 - Subsection 6(1) of the Surveillance Devices Act 2004
79. Item 72 amends the definition of detained in custody to clarify that it is referring to
detained in custody in a prison. The definition refers to the definition provided in
section 100.1 of the Criminal Code.
Item 73 - Section 6C of the Surveillance Devices Act 2004
80. Section 6C sets out the circumstances when a Part 5.3 supervisory order is taken to
be in force. Item 73 amends references to detained in custody in paragraph 6C(a)(ii)
to detained in custody in a prison. Subsection 6C(a) provides that a control order is
taken to be in force if it has been made but has not yet come into force because either
it has not been served on the person or the person is detained in custody in a prison.
Item 74 - Subsection 14(3BA) of the Surveillance Devices Act 2004
81. Subsection 14(3BA) sets out how a law enforcement officer (or another person on the
officer's behalf) can apply for the issue of a surveillance device warrant for PSO
applications. Item 74 amends the reference to detained in custody in paragraph (b) to
refer to detained in custody in a prison. As a result, an application for a surveillance
device warrant under this subsection is may only be made in relation to offenders
who are detained in custody in a prison.
26
Item 75 - Subsection 27A(5A) of the Surveillance Devices Act 2004
82. Subsection 27A(5A) sets out how a law enforcement officer (or another person on
the officer's behalf) may apply for the issue of a computer access warrant for PSO
applications. Item 75 amends the reference to detained in custody, to detained in
custody in a prison (paragraph 27A(5A)(b)). As a result, an application for a
computer access warrant under this subsection may only be made in relation to
offenders who are detained in custody in a prison.
Telecommunications (Interception and Access) Act 1979
Item 76 - Subsection 5(1) of the Telecommunications (Interception and Access) Act 1979
83. Item 76 amends the definition of detained in custody to clarify that it is referring to
detained in custody in a prison. The definition refers to the definition provided in
section 100.1 of the Criminal Code.
Item 77 - Section 6T of the Telecommunications (Interception and Access) Act 1979
84. Section 6T sets out when a supervisory order is taken to be in force. Item 77 amends
the reference to detained in custody, to be detained in custody in a prison.
Subsection 6T(a) provides that a supervisory order is taken to be in force if the order
is a control order that has been made but has not yet come into force because it has
not been served on the person or the person is detained in custody in a prison.
Item 78 - Subsection 46(7) of the Telecommunications (Interception and Access)
Act 1979
85. Subsection 46(7) sets out what an eligible Judge or nominated AAT member must be
satisfied of to issue a warrant sought for a PSO application in respect of a
telecommunications service. Item 78 amends the reference in paragraph 46(7)(e) to
detained in custody to be detained in custody in a prison. As a result, to issue such a
warrant, a Judge or nominated AAT member must be satisfied that the person is
detained in custody in a prison.
Item 79 - Subsection 46A(2C) of the Telecommunications (Interception and Access)
Act 1979
86. Subsection 46A(2C) sets out what an eligible Judge or nominated AAT member must
be satisfied of to issue a warrant for a PSO application in respect of a person. Item 79
amends reference to detained in custody to be detained in custody in a prison
(paragraph 46A(2C)(e)). As a result, to issue such a warrant, a Judge or nominated
AAT member must be satisfied that the person is detained in custody in a prison.
27
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