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2022-2023
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
MIGRATION AMENDMENT (BRIDGING VISA CONDITIONS AND OTHER
MEASURES) BILL 2023
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments to be moved on behalf of the Government
(Circulated by authority of the Minister for Immigration, Citizenship and Multicultural
Affairs, the Honourable Andrew Giles MP)
Migration Amendment (Bridging Visa Conditions and Other Measures) Bill 2023
OUTLINE
The Migration Amendment (Bridging Visa Conditions and Other Measures) Bill 2023 (the
Bill) amends the Migration Act 1958 (the Migration Act) to ensure non-citizens for whom
there is no real prospect of removal from Australia becoming practicable in the reasonably
foreseeable future and who are therefore not capable of being subject to immigration
detention under subsections 189(1) and 196(1) of the Migration Act following the High
Court's orders of 8 November 2023 in NZYQ v Minister for Immigration, Citizenship and
Multicultural Affairs [2023] HCA 37 (NZYQ) and who do not otherwise hold a visa are
subject to appropriate visa conditions on any bridging visa granted to them following
release.
The objective of the Bill is to keep the community safe, and to strengthen relevant
migration laws to respond to the decision in NZYQ.
Government amendments
These Government amendments (SY101) include amendments to the Bill to:
• make amendments to the Criminal Code Act 1995 (Criminal Code) to introduce a
new Community Safety Order (CSO) scheme, to protect the community from the
risk of individuals who have committed serious violent or sexual offences;
• make amendments to the Migration Act to provide for the grant of a Subclass 070
(Bridging (Removal Pending)) visa to non-citizens affected by NZYQ who have a
community safety order applied to them as outlined in the Criminal Code;
• make amendments to the Crimes Act 1914, the Administrative Decisions (Judicial
Review) Act 1977, the Telecommunications (Interception and Access) Act 1979
(TIA Act), the Australian Security Intelligence Organisation Act 1979 and the
Surveillance Devices Act 2004 (SD Act), to extend the application of these Acts to
the CSO scheme.
These Government amendments will further strengthen the measures in the Bill.
Amendments to the Migration Act
The amendments insert new section 76AA into the Migration Act, which will provide for
the effect of a CSO on a visa held by a non-citizen affected by NZYQ.
A visa held by a non-citizen, other than a criminal justice visa, ceases to be in effect if a
CSO is issued with respect to the non-citizen. Instead, the non-citizen is taken to have
been be granted a Subclass 070 (Bridging (Removal Pending)) visa (BVR), which comes
into effect immediately after the community safety order is made (unless the non-citizen
holds a criminal justice visa). A non-citizen whose criminal justice visa ceases while a
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community safety order is in force is also taken to have been granted a BVR at the time
the criminal justice visa ceases to be in effect. The Minister cannot invite a non-citizen to
apply for another BVR or grant another BVR to a non-citizen while a CSO is in force in
relation to the non-citizen.
A BVR that is taken to be granted to a non-citizen under new section 76AA is generally
subject to the conditions prescribed by the Migration Regulations 1994 (the Migration
Regulations), but must not be subject to a condition requiring the non-citizen to remain,
between certain times of a day, at a particular address for the non-citizen for the day, or a
condition requiring the non-citizen to wear a monitoring device.
If a condition of a BVR is taken to be granted under section 76AA is inconsistent, in
whole or in part, with any of the conditions on a Community Safety Supervision Order
(CSSO), other than a CSSO which is suspended, then the BVR is taken not to be subject to
that condition to the extent of any inconsistency. Similarly, if a non-citizen is unable to
comply with a condition of the BVR only because a Community Safety Detention Order
(CSDO), other than a CSDO which is suspended, is in force in relation to the non-citizen
at that time, the BVR is taken not to be subject to that condition. The purpose is to ensure
that the visa conditions on a BVR taken to be granted to a non-citizen under section 76AA
are not inconsistent with the requirements of a CSSO or CSDO.
Amendments to the Criminal Code
The amendments to the Bill will amend the Criminal Code Act 1995 (Criminal Code) to
introduce a new Community Safety Order (CSO) scheme, to protect the community from
the risk of individuals who have committed serious violent or sexual offences.
The new CSO scheme will allow the Immigration Minister to apply to a Supreme Court of
a State or Territory for a community safety detention order (CSDO) or community safety
supervision order (CSSO) in relation to non-citizens who have no real prospect of removal
from Australia becoming practicable in the reasonably foreseeable future. The Court is
also required to be satisfied that the offender poses an unacceptable risk of committing a
serious violent or sexual offence.
For CSDOs, a Court may make an order if satisfied to a high degree of probability, on the
basis of admissible evidence, that the offender poses an unacceptable risk of committing a
serious violent or sexual offence. The Court must also be satisfied that there is no less
restrictive measure, such as a CSSO or visa conditions, available that would be effective in
preventing the unacceptable risk.
For CSSOs, a Court may make an order if satisfied, on the balance of probabilities, and on
the basis of admissible evidence, that the offender poses an unacceptable risk of
committing a serious violent or sexual offence. The Court has the ability to consider a
broad range of conditions to address the specific risks posed by the person. This includes
restrictions on the person's movement, residence, communication and use of technology,
employment, and education. It is necessary and appropriate that the Courts have flexibility
to adapt CSSO conditions to each offender in order to maintain compliance,
proportionality and primarily the safety of the community. The Court must be satisfied
that each of the conditions and the combined effect of the conditions is reasonably
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necessary, and reasonably appropriate and adapted, for the purpose of protecting the
community from that unacceptable risk.
The amendments to the Bill create offences for contravening a CSSO condition, which
carry a mandatory minimum of one-year imprisonment, and a maximum penalty of five
years' imprisonment. The penalties provide an effective deterrent to the commission of
such an offence and reflects the significant risk that the offenders may pose to the
community.
The amendments incorporate a number of safeguards to ensure there are appropriate
checks and balances on this extraordinary scheme, including:
• The Immigration Minister has a number of specific disclosure obligations. This
includes ensuring that the Court is provided with a statement of any facts that the
Immigration Minister is aware of that could support a finding that the order should
not be made;
• In making a CSDO, the Court must be satisfied that there is no less restrictive
measure that would be appropriate in mitigating the risk posed by the non-citizen;
• A CSO must be reviewed by the Court at least annually, or earlier if the non-citizen
or Immigration Minister apply for a review;
• The Court must consider any report from a relevant expert on the risk that the non-
citizen poses, their participation in any treatment or rehabilitation programs, and
their history of prior convictions for serious violent or sexual offences; and
• The Immigration Minister must report annually to the Parliament about the
operation of the CSO scheme.
The amendments to the Bill also amend to the Crimes Act 1914, the Administrative
Decisions (Judicial Review) Act 1977, the Telecommunications (Interception and Access)
Act 1979, the Australian Security Intelligence Organisation Act 1979 and the Surveillance
Devices Act 2004, to extend the application of these Acts to the CSO scheme in order to
give effect to the scheme.
Amendments to the Surveillance Devices Act
The SD Act regulates the use of surveillance devices and establishes procedures for law
enforcement officers to obtain surveillance device warrants for certain purposes. The
surveillance and monitoring powers that will be extended to apply to CSOs include
surveillance device warrants and computer access warrants. Less intrusive surveillance
devices that may be used without a warrant will only be extended in relation to CSSOs.
The amendments to the Bill will allow law enforcement agencies to:
• obtain surveillance device warrants to monitor serious offenders who are subject to
CSSOs,
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• obtain surveillance device warrants to assist in determining whether to make an
application for a CSO (also referred to as a 'Part 9.10 order'),
• obtain computer access warrants to monitor serious offenders who are subject to
CSSOs,
• obtain computer access warrants to assist in determining whether to make an
application for a CSO, and
• use less intrusive surveillance devices without a warrant to monitor serious
offenders who are subject to CSSOs.
It is imperative that law enforcement agencies have adequate powers to monitor a serious
offender's compliance with the conditions of a CSSO. Without sufficient powers to
monitor compliance, community safety may be put at risk if the person does not comply
with the conditions of the order and breaches go undetected. Furthermore, the knowledge
that law enforcement is able to use its powers to actively monitor compliance with an
order provides a strong disincentive to a person to breach the conditions of their order.
This enhances the effectiveness of the CSSOs.
It is also imperative that law enforcement agencies have adequate powers to determine
whether to make an application for a CSO. Without sufficient powers to collect
information that would determine whether it is necessary for the safety of the community
to make a CSO application, and without sufficient evidence to support that application,
community safety may be put at risk if the decision to make an application is not able to
be made or supported.
The amendments to the Bill will also amend the SD Act to allow protected information
(which is broadly information obtained under a warrant or surveillance devices used
without a warrant) to be used in a range of circumstances, including to determine whether
the relevant order has been complied with. The power to use surveillance devices for
monitoring purposes will remain a covert power.
Amendments to the TIA Act
The TIA Act confers a range of investigatory powers on law enforcement and other
agencies. The amendments extend the application of the TIA Act to support the
monitoring of compliance with CSOs, including by allowing agencies to apply for
telecommunications services warrants, named person warrants and warrants for entry onto
premises for this purpose.
It is imperative that law enforcement agencies have adequate powers to monitor a person's
compliance with the conditions of a CSO. Without sufficient powers to monitor
compliance, community safety may be placed at risk if the person does not comply with
the conditions of the order and breaches go undetected. Furthermore, the knowledge that
law enforcement is able to use its powers to actively monitor compliance with an order
provides a strong disincentive to a person to breach the conditions of their order. This
enhances the effectiveness of the CSO. The evidence obtained through monitoring will
also assist in supporting the courts to more closely align the order with the person's
evolving level of risk.
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FINANCIAL IMPACT STATEMENT
The amendments of the Bill have a moderate financial impact.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
A Statement of Compatibility with Human Rights has been completed in relation to the
government amendments of the Bill. The Statement assesses that the amendments are
partially compatible with Australia's human rights obligations. A copy of the Statement is
at Attachment A.
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AMENDMENTS OF THE MIGRATION AMENDMENT (BRIDGING VISA
CONDITIONS AND OTHER MEASURES) BILL 2023 (SY101)
NOTES ON AMENDMENTS
Amendment (1)--Title, page 1 (line 1)
1. This amendment amends the long title of the Bill to provide that the Bill is for an
Act to amend the law relating to migration, and to protect the Australian community from
serious offenders.
Amendment (2)--Clause 1, page 1 (line 5)
2. This amendment provides that the short title of the Act be updated to be
Migration and Other Legislation Amendment (Bridging Visas, Serious Offenders and
Other Measures) Act 2023.
Amendment (3)--Schedule 1, heading, page 3 (line 1)
3. This amendment amends the heading of Schedule 1 to the Bill, which will now
read 'Amendments relating to bridging visas etc'. This reflects the fact that the Bill will
now amend multiple Acts, not only the Migration Act.
Amendment (4)--Schedule 1, page 3 (before line 4)
4. This amendment inserts new item [1A] into Schedule 1 to the Bill, which inserts
new section 76AA into the Migration Act.
5. New subsection 76AA(1) provides that section 76AA applies if a community
safety order is made in relation to a non-citizen, and that order comes into force at a
particular time (referred to as the 'relevant time' for the purposes of the section).
Non-citizen who holds a visa other than a criminal justice visa at the relevant time
6. New subsection 76AA(2) provides that if a non-citizen to whom section 76AA
applies holds a visa (other than a criminal justice visa) at the relevant time, being the time
the community safety order comes into force, then:
7. the visa will cease to be in effect at the relevant time (paragraph 76AA(2)(a)), and
8. immediately after the relevant time, the non-citizen is taken to have been granted
a Subclass 070 (Bridging (Removal Pending)) visa (BVR), which comes into effect as
soon as it is taken to be granted (paragraphs 76AA(2)(b) and (c)).
9. The note relating to this subsection clarifies that the visa period for the visa
(being a visa other than a criminal justice visa) held by the non-citizen at the time the
community safety order comes into force ends when that order comes into force. The note
also clarifies that the visa period for the BVR begins when it is taken to have been granted
under paragraph 76AA(2)(b).
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Non-citizen who holds a criminal justice visa at the relevant time
10. New subsection 76AA(3) provides that, if the non-citizen holds a criminal justice
visa at the time a community safety order comes into force, and the criminal justice visa
ceases to be in effect at a particular time (the cessation time) during the period in which
the community safety order is in force in relation to the non-citizen, then:
• the non-citizen is taken, immediately after the cessation time to have been granted
a BVR (paragraph 76AA(3)(c)); and
• the BVR is taken to come into effect as soon as it is taken to be granted
(paragraph 76AA(3)(d)).
11. The note relating to this subsection clarifies that the visa period for the BVR
begins when it is taken to be granted.
Matters relating to the BVR visa taken to be granted to the non-citizen
12. New subsection 76AA(4) provides that, following commencement of new section
76AA, the Migration Act and the Migration Regulations apply to a BVR granted under
either paragraph 76AA(2)(b) or paragraph 76AA(3)(c) in the same way as they would
apply to a BVR granted under the Migration Regulations. Subsection 76AA(4) applies
subject to subsections 76AA(6) and (7), below.
13. New subsection 76AA(5) provides for the following provisions in the Migration
Regulations, as in force at the time the BVR is taken be granted under either paragraph
76AA(2)(b) or paragraph 76AA(3)(c), to apply in relation to the BVR:
• a provision specifying when a Subclass 070 (Bridging (Removal Pending)) visa is in
effect;
• a provision prescribing that a Subclass 070 (Bridging (Removal Pending)) visa
permits the visa holder to remain in Australia;
• a provision specifying the conditions to which a Subclass 070 (Bridging (Removal
Pending)) visa that is taken to be granted under either paragraph 76AA(2)(b) or 76AA
(3)(c) is subject.
14. New subsection 76AA(6) provides that a non-citizen's BVR granted under either
paragraph 76AA(2)(b) or paragraph 76AA(3)(c) must not be subject to:
• a condition requiring the non-citizen to remain, between certain times of a day, at a
particular address for the non-citizen for the day; or
• a condition requiring the non-citizen to wear a monitoring device.
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Minister must not do certain things while the community safety order is in force
15. New subsection 76AA(7) prohibits the Minister from doing certain things while
the CSO made in relation to the non-citizen is in force.
16. The Minister must not invite the non-citizen, for the purposes of the Migration
Regulations, to apply for another BVR (paragraph 76AA(7)(a)).
17. The Minister must not grant another BVR to the non-citizen under the Migration
Regulations (paragraph 76AA(7)(b)). This prohibition applies whether or not the grant
would be as a result of an application made by the non-citizen, making clear that the
Minister cannot exercise a power allowing them to grant another BVR to the non-citizen
without application.
Inconsistency between the community safety order and the BVR
18. New subsection 76AA(8) provides that if a condition to which the non-citizen's
BVR is subject is inconsistent (in whole or in part) with a condition of the non-citizen's
community safety supervision order, then the BVR holder is taken not to be subject to that
condition to the extent of any such inconsistency.
19. New subsection 76AA(9) provides that if a non-citizen BVR holder is unable to
comply with a condition to which that BVR is subject because that condition is
inconsistent with any condition on a community safety detention order in relation to the
non-citizen, then the BVR holder is taken not to be subject to that condition.
20. New subsection 76AA(10) provides that subsection 76AA(6) and subsection
76AA(7) do not apply at any time while the community safety order made in relation to
the non-citizen is suspended. This means that if a community safety order is suspended,
the non-citizen's BVR will be subject to any condition including those which might
otherwise have been inconsistent with a condition of a community safety supervision order
or a community safety detention order.
Definitions
21. New subsection 76AA(11) provides the following definitions for the purposes of
section 76AA:
• community safety detention order has the same meaning as in Division 395 of the
Criminal Code.
• community safety order means a community safety detention order or a community
safety supervision order.
• community safety supervision order has the same meaning as in Division 395 of the
Criminal Code.
• monitoring device means any electronic device capable of being used to determine or
monitor the location of a person or an object or the status of an object.
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Amendment (5)--Page 8 (after line 21)
22. This amendment inserts Schedule 2 to the Bill, entitled 'Amendments relating to
community safety orders'.
23. Part 1 of Schedule 2 to the Bill deals with amendments to legislation other than
the Migration Act.
Administrative Decisions (Judicial Review) Act 1977
Item 1 Schedule 1 (after paragraph (dad))
24. Item 1 inserts paragraph (dada) into Schedule 1 of the Administrative decisions
(Judicial Review) Act 1977 (ADJR Act) - Classes of decisions that are not decisions to
which that Act applies. The effect of new paragraph (dada) is that judicial review under
the ADJR Act will not be available for decisions made by the Immigration Minister under
Division 395 of the Criminal Code.
25. Judicial review of these decisions will however remain available under section
39B of the Judiciary Act 1903 and section 75(v) of the Constitution.
26. In its 2012 report Federal Judicial Review in Australia, the Administrative
Review Council (ARC) outlined a number of principles that may justify an exemption
from review under the ADJR Act. One such principle is where review under the ADJR
Act has the potential to fragment or frustrate another legal process.
27. Division 395 contains vests decision making power in the Immigration Minister
to: one, direct a serious offender to attend an expert assessment; and two, apply to the
Supreme Court to seek a CSO (or to vary or review a CSO). These are decisions that form
part of the process leading up to the court's consideration of whether a CSO order should
be made. Excluding ADJR Act review of these decisions is consistent with the principle
that the court hearing the substantive proceeding (in this case the CSO application) is best
placed to determine any collateral matters in relation to the lawfulness of associated
government activity.
28. With regard to the Minister's decision to apply to the court for a CSO under
Division 395 (including a decision to seek a review or variation of an order), there is no
need for ADJR Act review to be available for these decisions, as an application for ADJR
Act review would be made at the same time as the court's consideration of the Minister's
application. This would mean that ADJR Act review would interrupt the application for a
CSO (or review or variation of such an order).
29. There remains an opportunity for judicial consideration of the Minister's decision
to apply for an order, or a review or variation of an existing order, because the court may
consider any submissions made by the respondent in relation to these matters in
determining the application. As such, the exemption from ADJR Act review does not
present a practical or substantive limitation on a respondent's ability to seek judicial
consideration of the Minister's decision.
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30. Similarly, it is appropriate to exempt the Minister's decision to direct a serious
offender to be assessed by a relevant expert (under section 395.43) from ADJR Act
review. This avoids the risk of an application for ADJR Act review being made
concurrently, in a separate court, with the application for a CSO, which could complicate
or delay the court's consideration of the CSO application within the statutory timeframe.
The ARC also identified that national security considerations are relevant in determining
whether ADJR Act review of decisions should be available. The Minister may rely on
national security considerations to determine whether it would be appropriate to direct a
serious offender to attend an assessment. In this context, judicial review of these decisions
is better conducted as part of the substantive proceeding on the application for a CSO.
31. Division 395 contains a number of measures that protect the serious offender's
rights and interests in relation to a direction to attend an expert assessment, including:
32. The serious offender is not required to answer any questions at the assessment.
Any answers or information given at the assessment are not admissible in evidence against
the offender in any civil or criminal proceedings, other than civil proceedings under
Division 395, or sentencing proceedings in relation to offences against Division 395
(subsection 395.43(5)).
33. Should the serious offender participate, any exculpatory information produced as
a consequence of the Minister's decision to direct the offender to attend an expert
assessment must be included as part of any application made under Division 395, subject
to any claim of public interest immunity in relation to that information (subparagraph
395.8(3)(b)(ii)).
34. The serious offender (or the offender's legal representatives) will have the
opportunity to present submissions to the relevant Supreme Court on the veracity of the
expert report. While the grounds on which the Minister's decision is based would not
encompass the broad grounds of review under the ADJR Act, the offender will be able to
present submissions on whether the report was lawfully obtained. The court must have
regard to the report in deciding whether to make a CSO (paragraph 395.11(1)(b)), and will
have the final determination as to the weight to be assigned to it. It is appropriate for the
court to consider challenges to the report in this context, including in relation to the
Minister's decision to direct the offender to attend the assessment.
Australian Security Intelligence Organisation Act 1979
Item 2 At the end of subsection 35(2)
35. Item 2 extends subsection 35(2) of the ASIO Act to apply to CSSOs. It puts
beyond doubt that a condition imposed on a serious offender by a CSSO under Division
395 of the Criminal Code or an action covered by any of the subsections 395.17(2) to (5)
(actions relating to electronic monitoring) are not prescribed administrative actions for the
purpose of the ASIO Act.
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36. The effect of the amendment is that ASIO would not pass relevant information to
the AFP for the purpose of the CSO scheme in the form of security assessments under Part
IV of that Act. However, the information may be communicated under other provisions of
the Act, including for example under subsection 18(3) if the Director-General is satisfied
that such communication is required.
Crimes Act 1914
Item 3 Paragraphs 3ZQU(1)(e) and 3ZZEA(1)(d)
37. Item 3 inserts references to new Division 395 of the Criminal Code into
paragraphs 3ZQU(1)(e) and 3ZZEA(1)(d) of the Crimes Act 1914 (Crimes Act).
38. The effect of these amendments is that a constable or Commonwealth officer has
an appropriate ability to share a thing seized under Parts IAA or IAAA of the Crimes Act,
or a document produced under Division 4B of the Crimes Act, with another constable or
Commonwealth officer, if it is necessary to do so for the purpose of 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 new Division 395 of the Criminal Code.
39. If, for example, a search warrant is executed as part of an investigation of
possible serious violent or sexual offences, it is appropriate that any evidence seized
during the execution of that warrant is made available to support an application for, or
proceedings related to, a CSO. This ensures the Immigration Minister, or a legal
representative of the Immigration Minister, and the court can readily access all available
evidence when making or determining a CSO application in relation to a serious offender.
Item 4 After Part IAAB
40. The Crimes Act confers a range of investigatory powers on law enforcement and
other agencies, including by establishing a monitoring warrant regime in Part IAAB. Item
4 will introduce a new Part IAABA to extend the operation of the monitoring warrant
regime so it can be used to monitor a serious offender's compliance with a CSSO.
41. Monitoring compliance with CSSOs is required to ensure that the purpose of
protecting the community is achieved. If compliance could only be monitored once there
were reasonable grounds upon which to suspect a breach, the damage would be done and
the protective value of the order would be undermined. The protective value of CSSOs is
also enhanced by the subject of the order knowing that compliance may be more readily
monitored.
Section 3ZZUHA - Simplified outline of this Part
42. Section 3ZZUHA provides an outline of the new Part IAABA of the Crimes Act
which amends how Part IAAB operates so that the monitoring warrant regime also applies
in relation to an offender subject to a CSSO made under Division 395 of the Criminal
Code.
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43. While simplified outlines are included to assist readers to understand the
substantive provisions, the outlines are not intended to be comprehensive. It is intended
that readers should rely on the substantive provisions.
44. The following paragraphs provide an overview of how the monitoring warrant
regime in Part IAAB operates in relation to a serious offender subject to a CSSO, in light
of the addition of new Part IAABA:
Division 2 - powers of constables in relation to premises
45. This Division specifies the monitoring powers, and powers to ask questions and
seek production of documents, conferred on constables who enter premises by consent or
under a warrant.
46. Subdivision A outlines the monitoring powers available to authorities, which
include:
• Powers to enter premises both with consent and under a warrant.
• General monitoring powers that a constable can exercise in relation to premises
including searching premises, bringing equipment and materials on to the premises,
measuring or testing any 'thing' on the premises, photographing things or making
copies of documents, or operating electronic equipment.
• Powers to operate electronic equipment on the premises and to use a disk, tape or
other storage device that is on the premises.
• Powers to secure electronic equipment to obtain expert assistance.
47. Subdivision B specifies powers to ask questions and seek the production of
documents.
48. Subdivision C authorises constables to exercise additional powers modelled on
the standard search warrant regime in Part IAA of the Crimes Act, including the
availability of assistance and use of force in executing a warrant.
49. It is appropriate that these powers can be used to monitor a serious offender who
is subject to a CSSO. The power for a constable to enter premises and exercise monitoring
in relation to a serious offender subject to a CSSO is necessary to ensure law enforcement
is appropriately equipped to monitor the serious offender's compliance with the conditions
of the CSSO, which were imposed to protect the community.
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Division 3 - Powers of constables in relation to persons subject to community safety
supervision orders
50. Division 3 specifies a range of search, monitor and seizure powers available to
constables. The provisions authorise a constable to conduct an ordinary search or a frisk
search of a person who is subject to a CSSO, search the person's possessions, record
fingerprints and take samples. This Division also authorises a constable to seize certain
items located during the search of a person and engage the assistance of another person,
including a person who is not a constable, in conducting searches under monitoring
warrants.
51. It is appropriate that these powers can be used to monitor a serious offender who
is subject to a CSSO. The power for a constable to conduct an ordinary search or a frisk
search in relation to an offender subject to a CSSO (either with the offender's consent or
under a warrant) is necessary to ensure law enforcement is appropriately equipped to
monitor the offender's compliance with the conditions of the CSSO, which were imposed
to protect the community. Specifically, searches enable a constable to gather information
that may assist in determining whether the person has been compliant with the CSSO.
Seizure powers may also assist the constable to manage any immediate risks or threats to
their personal safety while conducting a search.
Division 4 - Obligations and incidental powers of constables
52. Division 4 protects against arbitrary abuses of power as the entry, monitoring,
search, seizure and information gathering powers provided in Part IAAB are conditional
upon consent being given by the occupier of the premises or prior authorisation by a
magistrate. It is appropriate that these important safeguards apply where police are
exercising the relevant powers in order to monitor compliance with a CSSO.
Division 5 - Monitoring warrants
53. This Division allows a constable to apply to an issuing officer for a warrant
which will allow monitoring of a CSSO to prevent breaches. A monitoring warrant may be
made in relation to premises or a person. A monitoring warrant cannot be executed if the
relevant CSSO is revoked.
Division 6 - Monitoring warrants by telephone or other electronic means
54. This Division authorises a constable to apply for a monitoring warrant by
telephone or other electronic means, in case of urgency or if a delay in making the
application in person would frustrate the effective execution of the warrant. It is important
that these options are available to a constable seeking an expedited warrant for the purpose
of monitoring compliance with a CSSO, in light of the community protection purpose of
these orders.
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Division 7 - Extension of periods in which things secured
55. This Division provides for an issuing officer to grant an extension to the 24-hour
period in which a thing, which has been seized in exercise of the powers set out above, can
be secured by a constable. In the context of monitoring compliance with a CSSO, an
extension of time may be required to prevent the serious offender from destroying or
interfering with items that may evidence a breach, before police have had an opportunity
to make necessary records, or take investigatory actions to mitigate a community safety
risk.
Division 8 - Things seized, documents produced, and answers given, under this Part
56. This Division outlines requirements for police in relation to the handling of things
seized, documents produced and answers given under Part IAAB. This includes the
requirement to keep and maintain a record of seizure, and give receipts for things seized
when exercising powers under a monitoring warrant. Further, the Division specifies the
purposes for which things and documents may be used and shared by a constable or
Commonwealth officer, the requirements for operating seized electronic equipment,
compensation for damaged electronic equipment, and the requirements for returning things
seized or documents produced. It also specifies that an answer to a question asked of a
serious offender subject to a CSSO in exercise of powers under Part IAAB can only be
used for the purpose of protecting the public from a serious violent or sexual offence.
57. It is important that material gathered in exercise of powers under this Part are
handled responsibly in accordance with a prescribed process to ensure they are of greatest
utility to police in exercising their monitoring compliance functions, and that future
investigations and prosecutions are not compromised by the mishandling of evidence or
the unauthorised disclosure of information.
Division 9 - Powers of issuing officers
58. This Division provides that any function or power conferred on a magistrate
under this Part (including for example, the power to issue a monitoring warrant, which
may be sought to monitor compliance with a CSSO) is conferred in a personal capacity,
rather than as a court of a member of a court. It also provides the magistrate with the same
protection and immunity in relation to the performance or exercise of a function or power
conferred on them under this Part as a magistrate would have if the function was exercised
as a member of a court of which they are member.
Division 10 - General
59. This Division contains miscellaneous provisions. It provides:
• That where a search is being conducted of a serious offender, the person conducting
the search must be of the same sex and the offender.
• Protections to police from criminal responsibility in the event that a police officer
took actions in good faith in purported execution of a warrant that was issued on the
basis that a CSSO was in force, and a court subsequently declared the CSSO to be
void.
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• Record keeping requirements for the AFP Commissioner relation to documents
connected with issue of monitoring warrants.
• Requirements for the AFP Commissioner to notify the Ombudsman when a
monitoring warrant has been issued and contravened.
Division 11 - Inspections by Ombudsman
60. This Division provides the Commonwealth Ombudsman with powers to inspect
AFP records to determine the extent of compliance with art IAAB and monitoring
warrants, and to obtain information that may be relevant to such an inspection. It addresses
information sharing between the Ombudsman and State and Territory oversight bodies,
protections for the Ombudsman from civil liability in relation to the performance of
inspecting functions in this Division and requirements for the Ombudsman to issue an
annual report on the results of any inspections.
61. These provisions enable the Ombudsman to perform its critical monitoring and
review functions in relation to the exercise of powers by the AFP. Given the invasive
nature of the monitoring powers in this Part, appropriate oversight of, and transparency in
relation to, their use is critical to ensure that they do not interfere with individuals rights
other than where this is a necessary and proportionate measure to achieve the legitimate
objective of protecting the community by monitoring an offender's compliance with a
CSSO.
Section 3ZZUHB - Definitions
62. Section 3ZZUHB defines the terms 'community safety supervision order', 'Part
9.10 object', 'serious offender', and serious violent or sexual offence' for the purpose of
the new Part IAABA. The definitions are as follows:
• The term 'community safety supervision order' has the same meaning as in Division
395 of the Criminal Code. It means an order made under subsection 395.13(1)
(explained above).
• The term 'Part 9.10 object' means the protection of the community from the
unacceptable risk of a serious offender committing a serious violent or sexual offence.
• The term 'serious offender' has the same meaning as in Division 395 of the Criminal
Code. The meaning of this term is set out in subsections 395.5(1) and (2) (explained
above).
• The term 'serious violent or sexual offence' has the same meaning as in Division 395
of the Criminal Code. It means an offence against a law of the Commonwealth, a
State or a Territory where it is an offence punishable by imprisonment for life or for a
period, or maximum period, of at least 7 years; and the particular conduct constituting
the offence involved, involves or would involve, as the case requires:
o loss of a person's life or serious risk of loss of a person's life
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o serious personal injury or serious risk of serious personal injury; or
sexual assault
o or the production, publication, possession, supply or sale of, or other
dealing in, child abuse material (within the meaning of Part 10.6 of the
Criminal Code)
o or consenting to or procuring the employment of a child, or employing
a child, in connection with child abuse material, or
o acts done in preparation for, or to facilitate, the commission of a sexual
offence against a person under 16.
Section 3ZZUHC - Application of Part IAAB to community safety supervision orders
63. Subsection 3ZZUHC(1) provides that Part IAAB (other than sections 3ZZJA or
3ZZJB) of the Crimes Act applies as if a reference to a Part 5.3 supervisory order included
reference to a CSSO, and a reference to a Part 5.3 object included reference to a Part 9.10
object.
64. The effect is that all powers available to police under Part IAAB for the purpose
of protecting the community from serious terrorist offences through monitoring offenders'
compliance with supervisory orders, are also available to police for the purpose of
protecting the public from serious violent and sexual offences through monitoring
offenders' compliance with CSSOs.
65. Section 3ZZUHC additionally provides that sections 3ZZOA and 3ZZOAB of the
Crimes Act apply as if specified amendments were made to account for circumstances in
which monitoring warrants are sought in relation to CSSOs. Section 3ZZOA authorises a
constable to apply to an issuing officer for a monitoring warrant in relation to premises.
Section 3ZZOA authorises a constable to apply to an issuing officer for a monitoring
warrant in relation to a person.
66. Subsection 3ZZUHC(2) provides that subsection 3ZZOA(4) applies as if a new
paragraph (c) was inserted into this subsection, requiring the issuing officer to have regard
to the possibility that the person has committed, is committing, or will commit, a serious
violent or sexual offence when determining whether to issue a monitoring warrant in
relation to premises.
67. Subsection 3ZZOA(5) of the Crimes Act lists the matters that must be set out in a
monitoring warrant in relation to premises, including a description of the premises to
which the warrant relates, the time at which the warrant expires, whether a person who is
not a constable is able to assist in executing the warrant, and details relating to the
supervisory order to which the individual is subject. Subsection 3ZZUHC(3) provides that
paragraph 3ZZOA(5)(l) applies as if a new subparagraph 3ZZOA(5)(ia) was inserted
immediately after this paragraph, with the effect that the warrant must state whether the
supervisory order in place is a CSSO.
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68. Subsection 3ZZUHC(4) provides that 3ZZOA(5) applies as if a new paragraph
(qa) was inserted into this subsection providing that a warrant sought in relation to
premises for the purpose of monitoring compliance with a CSSO must specify when the
CSSO comes into force, and the end of the period during which the CSSO is in force.
69. Subsection 3ZZUHC(5) provides that subsection 3ZZOB(4) applies as if a new
paragraph (c) was inserted into this subsection requiring the issuing officer to have regard
to the possibility that the person has committed, is committing, or will commit, a serious
violent or sexual offence in determining whether to issue a monitoring warrant in relation
to a person.
70. Subsection 3ZZOB(5) of the Crimes Act lists the matters that must be set out in a
monitoring warrant in relation to a person, including the name of the person to whom the
warrant relates, the time at which the warrant expires, whether a person who is not a
constable is able to assist in executing the warrant, and details relating to the supervisory
order in force in relation to the individual. Subsection 3ZZUHC(6) provides that paragraph
3ZZOB(5)(j) applies as if a new subparagraph (ia) was inserted directly after this
provision, with the effect that the warrant must state whether the supervisory order in
place is a CSSO.
71. Subsection 3ZZUHC(7) provides that subsection 3ZZOB(5) applies as if a new
paragraph (oa) was inserted into that subsection providing that warrant sought in relation
to a person for the purpose of monitoring compliance with a CSSO must specify when the
CSSO comes into force, and the end of the period during which the CSSO is in force.
72. Subsection 3ZZUHC(8) provides that paragraph 3ZZOD(1)(b) applies as if a new
subparagraph (iii) was inserted into that paragraph, with the effect that a monitoring
warrant sought for the purposes of monitoring compliance with a CSSO must not be
executed if the CSSO is revoked and no further CSSO is made in relation to the serious
offender.
Criminal Code Act 1995
Item 5 At the end of Chapter 9 of the Criminal Code
73. This Item inserts new Part 9.10 - Community safety orders into the Schedule to
the Criminal Code Act 1995.
Part 9.10 - Community safety orders
Division 395 - Community Safety orders
Subdivision A - Preliminary
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Section 395.1 - Object
74. Section 395.1 provides for the object of the Division, which is to protect the
community from serious harm by providing that non-citizens who pose an unacceptable
risk of committing serious violent or sexual offences, and have no real prospect of being
removed from Australia in the reasonably foreseeable future, are subject to a CSDO or a
CSSO, collectively referred to as CSOs.
Section 395.2 - Definitions
75. Section 395.2 inserts a number of definitions for this Division.
76. The definition 'AFP member' is added, and provides that the term means a
member of the Australian Federal Police within the meaning of the Australian Federal
Police Act 1979 (AFP Act), or a special member of the Australian Federal Police within
the meaning of the AFP Act.
77. The definition of 'Commonwealth law enforcement officer' is added, and
provides that the term has the same meaning that is given to it in Part 7.8 of the Criminal
Code.
78. The definition of 'community safety detention order' is added, and provides that
the term has the meaning given to it by subsection 395.12(1). Subsection 395.12(1)
establishes that a Supreme Court of a State or Territory may make a written CSDO if
certain thresholds are met.
79. The definition of 'community safety order' is added, and provides that the term
means either a CSDO or a CSSO.
80. The definition of 'community safety order decision' is added, and provides that
the term means a decision either on an application for a CSO, an application to vary a
CSO, a review of a CSO to affirm, revoke or vary the order, or a decision made under
section 395.34 (when a serious offender is unable to engage a legal representative). This
definition is relevant to sections 395.35 (Reasons for decisions) and 395.36 (Right of
appeal), which provide that the Court needs to give reasons for decisions, and that CSO
decisions can be appealed. There is a note that refers to subsection 395.2(2), which further
clarifies when a CSO decision is made.
81. The definition of a 'community safety order proceeding' is added, and provides
that the term means a proceeding that is outlined under Subdivision C, D or E. The
definition includes all proceedings relating to a CSO, including a preliminary hearing
under section 395.9, a hearing for a CSO, a proceeding to determine whether to grant a
review under section 395.24, and a review hearing. This definition is relevant in the
context of Subdivision F, which requires the civil evidence and procedure rules to apply to
a CSO proceeding.
82. The definition of a 'community safety supervision order' is added, and provides
that the term means an order made under subsection 395.13(1).
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83. The definition of 'detained in custody' is added, and provides that it has the same
meaning given by subsection (2), explained below.
84. The definition of 'detained in custody in a prison' is added, and provides that it
has the same meaning given by subsection (3), explained below.
85. The definition of 'exemption condition' is added, and provides that the term has
the meaning given to it by subsection 395.15(2). This is relevant to paragraph
395.13(4)(c), which provides that a Court must detail in a CSSO what (if any) conditions
an offender may be able to seek an exemption from.
86. The definition of 'Immigration Detention is added, and provides that the term has
the meaning as in the Migration Act 1958.
87. The definition of 'Immigration Minister' is added, and provides that the term
means the Minister responsible for administering the Migration Act 1958.
88. The definition of 'lawyer' is added, and provides that the term means a person
enrolled as a legal practitioner of a federal court or the Supreme Court of a State or
Territory.
89. The definition of 'monitoring device' is added, and provides that the term means
any electronic device capable of being used to determine or monitor the location of a
person or an object or the status of an object. This is relevant to the conditions that may be
imposed as part of a CSSO in paragraph 395.14(7)(d), obligations relating to monitoring
devices at section 395.17 and the offence relating to monitoring devices at section 395.39.
90. The definition of 'non-citizen' is added, and provides that the term means a
person who is not an Australian citizen.
91. The definition of 'personal information' is added, and provides that the term has
the same meaning as in the Privacy Act 1988. This is relevant in the context of the
information sharing provisions in sections 395.44 (Sharing information), 395.45 (Sharing
information relating to community safety supervision orders) and 395.48 (Arrangements
by AFP Commissioner for functions and powers relating to community safety supervision
orders).
92. The definition of 'police officer' is added, and provides that the term means
either an AFP member or a member (however described) of a police force of a State or
Territory.
93. The definition of 'premises' is added, and includes a place, an aircraft, a vehicle
and a vessel. This is consistent with the definition in the Crimes Act. In addition to
including a house or car, this covers things like a storage facility or locker. This is relevant
to section 395.14, which sets out the conditions that may be included in a CSSO. In
particular, paragraph 395.14(7)(i)(iii) makes clear a Court can include a condition in a
CSSO concerning a search of premises under an offender's control.
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94. The definition of 'related monitoring equipment' is added, and provides that the
term, in relation to a monitoring device, means any equipment necessary for operating the
monitoring device. This would include any accessories such as for charging the device or
beacons.
95. The definition of 'relevant expert' is added, and provides that the term means the
following person, who is competent to assess the risk of a serious offender committing a
violent or sexual offence:
• a registered medical professional under a law of a State or Territory who is also a
fellow of the Royal Australian and New Zealand College of Psychiatrists; or
• a person registered as a medical practitioner under a law of a State or Territory; or
• a person registered as a psychologist under a law of a State or Territory; or
• any other expert.
96. This definition provides guidance as to who the Court may appoint as a relevant
expert at a preliminary hearing under section 395.9 or for the purposes of a review of a
CSO under section 395.25 and who the Immigration Minister may appoint to conduct a
risk assessment under section 395.43.
97. The definitions of 'reside' and 'residence' are added, and clarify that these terms
cover not only permanently residing at a place but also temporarily residing at a place.
This is relevant to the conditions that may be imposed on an offender as part of a CSSO
and for determining where applications for review or variation of CSSOs must be made.
98. The definition of 'senior AFP member' is added, and provides that the term
means the Commissioner of the Australian Federal Police; a Deputy Commissioner of the
Australian Federal Police; and an AFP member of, or above, the rank of Superintendent.
This definition is important as subsection 395.48 provides that the Commissioner of the
Australian Federal Police may delegate the performance of functions or exercise of powers
that they hold in relation to a CSSO to a senior AFP Member.
99. The definition of 'serious foreign violent or sexual offence' is added, and
provides that the term means an offence against a law of a foreign country where the
offence punishable by imprisonment for life or for a period, or maximum period, of at
least 7 years, is constituted by conduct that, if engaged in in Australia, would constitute an
offence against a law of the Commonwealth, a State or a Territory, and the particular
conduct constituting the offence involved, involves or would involve:
• loss of a person's life or serious risk of loss of a person's life; or
• serious personal injury or serious risk of serious personal injury; or
• sexual assault; or
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• sexual assault involving a person under 16; or
• the production, publication, possession, supply or sale of, or other dealing in, child
abuse material (within the meaning of Part 10.6); or
• consenting to or procuring the employment of a child, or employing a child, in
connection with material referred to in subparagraph (v); or
• acts done in preparation for, or to facilitate, the commission of a sexual offence
against a person under 16.
100. The definition of 'serious offender' is added, and provides that the term has the
meaning given to it by subsections 395.5(1) and (2). The note to the definition provides
that the definition is affected by section 395.37.
101. The definition of 'serious violent or sexual offence' has many identical elements
to the definition 'serious foreign violent or sexual offence'. To the extent that the
definitions differ, it is in relation to the latter capturing the same types offences that
instead have been committed against a law of a foreign country. The capture of these
serious and abhorrent offences in foreign contexts is reasonable and appropriate for the
purposes of the Bill. This is because the object of this Division is to ensure that the
community is protected from non-citizens who pose an unacceptable risk of harming the
community by committing serious violent or sexual offences and have no real prospect of
being removed from Australia in the reasonably foreseeable future through either
detention or applying appropriate controls. Preventing the Courts from considering a CSO
for an individual who has committed serious violent or sexual offences in the past, but not
within the jurisdiction of the Commonwealth of Australia, would mean that potentially
dangerous individuals capable of serious violent and sexual conduct could be released into
the community with little control or oversight. This would put members of the Australian
community at risk, unfairly prejudice the public's right to safety and be contrary to the
intent of the Bill.
102. The definition of 'serious violent or sexual offence' is added, and provides that
the term means an offence against a law of the Commonwealth, a State or Territory where
the offence is punishable by imprisonment for life or for a period, or maximum period of
at least 7 years, and the particular conduct constituting the offence involved, involves or
would involve:
• loss of a person's life or serious risk of loss of a person's life; or
• serious personal injury or serious risk of serious personal injury; or
• sexual assault; or
• sexual assault involving a person under 16; or
22
• the production, publication, possession, supply or sale of, or other dealing in, child
abuse material (within the meaning of Part 10.6); or
• consenting to or procuring the employment of a child, or employing a child, in
connection with material referred to in subparagraph (v); or
• acts done in preparation for, or to facilitate, the commission of a sexual offence
against a person under 16.
103. These definition of 'serious foreign violent or sexual offence' and 'serious violent
or sexual offence' provide clarity about the type of offences which would satisfy
paragraph 395.5(1)(a), which is necessary for the Court to be satisfied of before they may
make a CSO against a serious offender. The requirement that the offence have a maximum
penalty of 7 or more years of imprisonment reflects the seriousness of the offending
required to give rise to it being a 'serious offence'.
104. The definition seeks to capture only the most significant and concerning conduct
that could be committed by an individual against, or in relation to, another individual. The
particular conduct constituting a serious violent or sexual offence is serious, abhorrent,
and contrary to the standards and values maintained by the Australian community. The
conduct listed limits the number of offences being categorised as 'serious violent or sexual
offences' to only those that involved, involves or would involve harm to the safety of
individuals (rather than, for instance, violence in relation to property, certain drug offences
or financial crimes). Preparatory acts that did not actually result in harm but would have
involved the serious risk of harm are included in these definitions (for example,
conspiracy to murder) to reflect the seriousness of planning and the continued risk
presented by persons who were intending to engage in such conduct.
105. A list of offences has not been included in order to provide maximum flexibility
into the future on the offences captured by this definition, where the offence involves
serious violent or sexual conduct.
106. The definition of 'specified authority' is added, and relates to the conditions that
may be imposed as part of a CSSO, where a Court may provide in the CSSO that certain
persons or classes of persons may give directions or exercise discretion in relation to
certain conditions identified in the order (see subsections 395.15(3) and (4) and sections
395.15 and 395.17). The definition provides that a person, or persons, or class of persons
is a specified authority for a requirement or condition in a CSSO in relation to another
person (the subject) if:
• the person or class of persons is either a police officer, a class of police officer; a
person, or classes of persons, who is involved in electronically monitoring the subject
(if the requirement or condition relates to electronic monitoring); or any other class of
persons (for any condition in the order); and
• the Court is satisfied that the person or class is appropriate in relation to the
requirement or condition; and
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• the person or class is specified in the order.
107. The category of persons who may be designated as a specified authority in an
order is broad so that the Court making the order has sufficient flexibility, noting there are
a range of conditions that may be imposed under a CSSO. For example, it would allow the
Court to make a provider of electronic monitoring services a specified authority for the
purposes of a condition imposed pursuant to paragraph 395.14(7)(d) where the electronic
monitoring of serious offenders has been outsourced pursuant to an arrangement under
section 395.48. It would also allow the Court to make a coordinator of countering violent
extremism programs in the relevant jurisdiction or a clinical psychologist the specified
authority for the purposes of a condition imposed pursuant to paragraph 395.14(5)(o). In
all instances the Court making the order must be satisfied that the specified authority is
appropriate in relation to the particular condition. The Court would be able to consider the
particular condition that is being imposed and the circumstances and qualifications of the
proposed specified authority when determining whether the person or class of persons is
appropriate. This is an important safeguard that will limit which person or class of persons
could be made a specified authority.
Definition of detained in custody etc.
108. Subsections 395.2(2) and 395.2(3) are inserted and provide the definitions of
detained in custody, detained in custody in a prison.
109. A person is detained in custody if the person is detained in custody under a law of
the Commonwealth, a State or a Territory.
110. 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 CSDO. 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.
When a decision is made
111. Subsection 395.2(4) is inserted, which provides that, for an avoidance of doubt, a
CSO decision is not made until the Court determines the application in accordance with
section 395.10.
112. These provisions reflect the fact that the Court considering an application for a
CSDO may be required to consider making a CSSO, if the Court is not satisfied that the
threshold for a CSDO has been met. Subsection 395.2(5) clarifies that, if the Court is not
so satisfied as to make a CSDO, the Court only makes a CSO decision (within the
meaning of subsection 395.2(1)) when it decides to either make a CSSO or to dismiss the
application. This means that the Court does not need to give reasons until that time, and
the decision cannot be appealed until that time (see sections 395.35 and 395.36). At that
point, for example, the Immigration Minister may be able to appeal the Court's decision to
not make a CSDO, and the offender may be able to appeal the decision to make a CSSO.
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Section 395.3 - Concurrent operation intended
113. Section 395.3 provides for the concurrent operation of any law of a State or
Territory. A number of states have already implemented their own CSO schemes;
therefore, this provision is included to implement the intent of the Bill. That is, to not
impede or restrict the operation of schemes in the states and territories, but instead to
provide more tools for the management of individuals who may pose a threat to the safety
of the Australian community.
Section 395.4 - Regulations may modify operation of this Division to deal with interaction
between this Division and State and Territory laws
114. Subsection 395.4 provides for the development of regulations that may modify
operation of this Division to deal with interaction between Part 9.10 and State and
Territory laws.
Subdivision B - Community safety orders
Section 395.5 - Who a community safety order may apply to and effect of community
safety orders
115. Section 395.5 sets out who a CSO may apply to, and the effect of CSOs.
116. CSOs respond to the High Court of Australia's decision in NZYQ v Minister for
Immigration, Citizenship and Multicultural Affairs Anor (2023) by strengthening the
options available to non-citizen serious offenders who pose an unacceptable risk of
engaging in conduct constituting a serious violent or sexual offence, contrary to the
standards and values maintained by the Australian community.
117. Subsection 395.5(1) provides that a CSO may be made in relation to a non-citizen
who would be at least 18 years old at the time of order is made where:
• the person has been convicted of a serious violent or sexual offence (paragraph
395.5(1)(a)); and
• there is no real prospect of removal of the person from Australia becoming practicable
in the reasonably foreseeable future (paragraph 395.5(1)(c); and
• a subsection of section 395.6 provides that the order may be made in relation to the
person (paragraph 395.5(1)(d)).
118. The note under subsection 395.5(1) provides that before making the order the
Court must be satisfied of certain matters under section 395.12 or 395.13.
119. Subsection 395.5(2) provides a CSO may be made under section 395.12 or
395.13 in relation to the person (the serious offender) if:
• the person has been convicted of a serious foreign violent or sexual offence
(paragraph 395.5(2)(a)); and
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• the person is a non-citizen (paragraph 395.5(2)(b)); and
• there is no real prospect of removal of the person from Australia becoming practicable
in the reasonably foreseeable future (paragraph 395.5(2)(c)); and
• a subsection of section 395.6 provides that the order may be made in relation to the
person (paragraph 395.5(2)(d)); and
• the person is at least 18 years old (paragraph 395.53(2)(e)).
120. The note under subsection 395.5(2) provides that before making the order, a court
must be satisfied of certain matters under section 395.12 or section 395.13.
Effect of a community safety detention order
121. Subsection 395.5(3) provides that the effect of a CSDO is to commit the person to
detention in a prison, currently defined in section 395.2, for the period of the order. This
acts as an important safeguard to ensure that a CSDO can only be imposed for an
appropriate amount of time.
122. Note 1 under subsection 395.5(3) provides that the period of detention must not
be more than 3 years (subsection 395.12(5)).
123. Note 2 under subsection 395.5(3) references other relevant sections namely
section 395.41 (detention under the Migration Act); and section 395.42 (effect of prison
detention on community safety order); and subsection 395.47(2) (arrangements with states
and territories); and section 395.50 (effect of CSDOs on bail or parole laws).
Effect of a community safety supervision order
124. Subsection 395.5(4) provides that the effect of a CSSO is to impose on the person
a range of conditions with which the person must comply for the period that the CSSO is
in force. This acts as an important safeguard to ensure that a CSSO can only be imposed
for an appropriate amount of time.
125. Note 1 under subsection 395.5(4) provides that the period of the order must not
be more than 3 years (subsection 395.13(4)(d)).
126. Note 2 under subsection 395.5(4) references other relevant sections namely
subsection 395.41 (detention under the Migration Act) and subsection 395.42 (effect of
prison detention on community safety order).
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Section 395.6 - Preconditions for community safety orders
Person is serving a sentence of imprisonment
127. Subsection 395.6(1) provides that a community safety order may be made in
relation to a person if the person is detained in custody in a prison serving a sentence of
imprisonment for a serious violent or sexual offence or any other offence. This is to ensure
that when the person is released from custody they have appropriate orders placed upon
them to protect the safety of the community.
Person is in the community
128. Subsection 395.6(2) provides that a community safety order may be made in
relation to a person if the person is in the community.
Community Safety detention order is in force
129. Subsection 395.6(3) provides that a CSO may be made in relation to a person if a
CSDO is in force in relation to the person.
Section 395.7 - Treatment of a serious offender in a prison under a community safety
detention order
130. Section 395.7 relates to the treatment of a serious offender detained in a prison
under a CSDO, noting that such a person would not be serving a term of imprisonment
and should be treated accordingly.
131. Section 395.7 provides that a serious offender subject to a CSDO must be treated
in a way appropriate to their status as a person who is not serving a sentence of
imprisonment. This is subject to any reasonable requirements necessary to maintain:
• the management, security or good order of the prison (paragraph 395.7(1)(a)); and
• the safe custody or welfare of the offender or any prisoners (paragraph 395.7(1)(b);
and
• the safety and protection of the community (paragraph 395.7(1)(c)).
132. This includes not accommodating or detaining the offender in the same area or
unit of a prison as persons serving sentences of imprisonment (subsection 395.7(2)).
However, exceptions are permitted to this requirement including:
• it is reasonably necessary for the purposes of rehabilitation, treatment, work,
education, general socialisation or other group activities (paragraph 395.7(2)(a)); or
• it is necessary for the security or good order for the prison or the safe custody or
welfare of the offender or prisoners (paragraph 395.7(2)(b)); or
• it is necessary for the safety and protection of the community (paragraph 395.7(2)(c));
or
27
• the offender elects to be so accommodated or detained (paragraph 395.7(2)(d)).
133. Subsection 395.7(3) provides that section 395.7 does not apply if the serious
offender is serving a sentence of imprisonment.
Subdivision C - Making community safety orders
Section 395.8 - Applying for a community safety order
134. Subsection 395.8(1) provides that the Immigration Minister, or a legal
representative of the Immigration Minister, may make an application to a Supreme Court
of a State or Territory for a CSO, which includes either a CSDO or a CSSO. This
provision has the effect of requiring the Immigration Minister to only make an application
for one CSO at any one time.
135. The note under subsection 395.8(1) clarifies that a court may make a CSSO under
395.13 even if a CSDO is applied for. That is, section 395.13 requires a court to consider
making a CSSO if it is not satisfied that the requisite thresholds to make a CSDO have
been met. This reflects that CSSOs are a less restrictive measure to a CSDO for the
purposes of managing the risk posed by the serious offender.
136. Subsection 395.8(2) provides an obligation for the Immigration Minister to
undertake certain inquiries with Commonwealth law enforcement to obtain exculpatory
material or information. The Immigration Minister must ensure reasonable inquiries are
made to ascertain any facts known to a Commonwealth law enforcement that would
reasonably be regarded as supporting a finding that an order should not be made. If the
application is for a CSDO, the Immigration Minister must ensure reasonable inquiries are
made to ascertain whether material or information exists that support a finding that neither
a CSDO nor a CSSO should be made. If the application is for a CSSO, the Immigration
Minister must ensure reasonable inquiries are made to ascertain whether material or
information exists that support a finding that a CSSO should not be made. While it would
ordinarily be expected that exculpatory material would be relevant to both types of CSOs,
this ensures that if there is exculpatory material that specifically relates to whether
detention or supervision should not be imposed then that exculpatory material will be
sought.
137. This will require that reasonable inquiries are made of the existing material law
enforcement held. Unlike the post-sentence order regime of Division 105A of the Criminal
Code, the Immigration Minister is not required to undertake inquiries with any intelligence
or security officer, as it is unlikely intelligence services would retain relevant material or
information for matters that are violent or sexual in nature. This provision will not require
Commonwealth law enforcement to undertake further operational enquiries.
Content of the application
138. Subsection 395.8(3) sets out the requirements for the contents of an application
for a CSO.
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139. Paragraph 395.8(3)(a) provides that an application must include any report or
documentation the applicant seeks to rely on. Paragraph 395.8(3)(b) would require an
application must include a copy of any material in possession of the applicant, and a
statement of any facts that the applicant is aware of that would reasonably be regarded as
supporting a finding that the order or orders mentioned in paragraph (2)(a) or (b) should
not be made, except for any information, material or facts that are likely to be protected by
public interest immunity, regardless of who may lodge the claim for public interest
immunity.
140. Paragraph 395.8(3)(c) provides that in an application for a CSO, the Immigration
Minister must include information about the offender's age. This is included so as to
provide assurance to the court that the person is over 18 years of age, and is therefore
eligible for a CSO.
141. Paragraph 395.8(d) provides that if the offender is a holder of a visa that is
subject to conditions under the Migration Act 1958, specify the visa conditions that are
currently imposed on the person must be included in the application. Inclusion of this
information will ensure that the Courts are provided information about any conditions
imposed on the person, to inform the court's assessment of the application for a CSDO or
CSSO. This is particularly relevant when considering whether the visa conditions would
be effective to manage the risk posed by the serious offender.
142. Paragraph 395.8(3)(e) provides that an application must include a requested
period for which an order should be in force.
143. Paragraph 395.8(3)(f) provides that if the Immigration Minister is applying for a
CSSO, then the application must also include a copy of the conditions proposed to be
imposed on the offender by a CSSO (subparagraph 395.8(3)(f)(i)) and an explanation as to
why each of the proposed conditions should be imposed on the offender (subparagraph
395.5(3)(f)(ii)). In addition, if the Immigration Minister is aware of any facts that suggest
any of those conditions should not be imposed on the offender, then the Immigration
Minister needs to include a statement of those facts (subject to the information protections
outlined in section 395.30) (subparagraph 395.8(3)(f)(iii)). This ensures that a court has all
relevant information before it when determining whether each of the conditions to be
imposed on the offender is reasonably necessary, and reasonably appropriate and adapted,
for the protective purpose of CSSOs.
144. Under subparagraph 395.8(3)(f)(iv) the Court must also be provided with a copy
of any State or Territory PSO to which the offence is subject. 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 CSO. The Court is required to consider any State or Territory PSO at
two stages of an application for a Commonwealth CSO - firstly, when considering the
offender's risk of committing a serious violent or sexual offence, and secondly, when
considering whether a condition to be included in a CSSO is reasonably necessary and
reasonably appropriate and adapted for the purpose of protecting the community from that
risk.
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145. Paragraph 395.8(3)(g) provides that if the Immigration Minister obtains a report
in relation to the offender under section 395.43, which allows the Immigration Minister to
obtain a report on the risk of the offender committing a serious violent or sexual offence,
then the Immigration Minister must include a copy of the report in the application (subject
to sections 395.30, 395.31 and 395.32).
Section 395.9 - Appointment of and assessment by relevant expert
146. Subsections 395.9(1) and 395.9(2) provide that the Court must hold a preliminary
hearing within 28 days after the application is given to the offender under subsection
395.29(2), 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 violent or sexual offence if the
offender is released into the community.
147. In order for the Court to appoint an expert under this section, subsection 395.9(3)
requires that the Court must consider that doing so is likely to materially assist the Court
in deciding whether to make a community safety order in relation to the offender. The
proceedings can continue, even if the Court decides not to appoint an expert because it
does not consider this threshold to be met. Furthermore, the Court may decide not to
appoint an expert even if it considers the threshold to be met. The decision to appoint an
expert is at the Court's discretion.
148. Under subsection 395.9(5) the relevant expert appointed by the Court must (a)
conduct an assessment of the risk of the offender committing a serious violent or sexual
offence and (b) provide a report of their assessment to the Court, the Immigration Minister
and the offender. This is to ensure independence of the report, and 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 395.28, or the matters the Court must have regard to
under section 395.11. The offender must be provided with the report in accordance with
the process for giving offenders documents as set out in section 395.33.
149. Ensuring that all parties in the proceedings have equal access to a report provided
by a relevant expert helps ensure the offender is not unfairly disadvantaged by virtue of
not being given access to the report.
Attendance and participation at assessment
150. Subsection 395.9(6) provides that the offender must attend the assessment, and
the note following subsection 395.6(6) clarifies that the assessment 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 395.11(1)(b).
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151. Subsection 395.9(7) concerns the admissibility of information provided by the
offender during a relevant expert's assessment. The offender is not compelled to answer
questions. Any information, or the answers to questions, provided by the offender during
the relevant expert's assessment can only be used for the purposes of civil proceedings
under this Division, i.e. CSO proceedings. The information is not admissible in any other
civil proceedings.
152. Any information provided by the offender during the relevant expert's assessment
cannot be used in criminal proceedings, except in limited post-conviction context.
Information provided by the offender during the relevant expert's assessment may be used
by a court sentencing a person for an offence against this Division, namely the breach of a
CSSO, or interference with a tracking device. This ensures the Court has all relevant
materials available for its consideration when sentencing an offender for a breach offence,
while balancing this against the need to ensure that information provided by the offender
during the relevant expert's assessment cannot be used as a basis for a conviction. Expert
risk assessment reports are generally more extensive than court reports produced for
sentencing hearings. These assessment reports may also provide valuable evidence of a
person's mental state at the time of committing an offence, which may be useful during
sentencing proceedings for that offence.
153. Subsection 395.9(8) requires the Court to ensure that the offender is provided
with an explanation of the effect of both the requirement for the offender to attend the
assessment (under subsection 395.9(6)); the implications of answering a question or giving
information, or not answering a question or giving information, on any criminal and civil
proceedings (subsection 395.9(7)). The court must also ensure the effect of subsection
395.9(11), which provides that without limiting subsection 395.9(7), the report of the
assessment may be taken into account in proceedings to make, vary or review any
community safety order in relation to the offender. 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.
Contents of report
154. Subsection 395.9(9) 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 provides a consistent basis for the content of reports for the
purposes of assisting the Court in its assessment.
Other relevant experts
155. Subsection 395.9(10) clarifies that 395.9 does not prevent the Immigration
Minister or the offender, or a legal representative of the Immigration Minister or offender,
from calling their own relevant expert a witness in the proceeding.
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Assessments conducted for certain purposes
156. Subsection 395.9(11) clarifies the circumstances in which expert assessments and
reports may be used. Subsection 395.9(11) provides that an expert assessment of an
offender's risk of committing a serious violent or sexual offence, along with the
corresponding report, may be used in any other CSO proceedings in relation to the
offender, and may be used by the Court for different purposes in the original CSO
proceedings. This means that if an assessment is undertaken for the purpose of
determining whether to make a CSDO, the Court could also use that assessment and report
in determining whether to make a CSSO in relation to the offender. In addition, a court
could use that report in determining any subsequent application for a CSDO or CSSO, as
well as reviews or variations of a CSO.
Sections 395.10 - Determining an application for a community safety order and 395.11 -
Matters a Court must have regard to in making a community safety order
157. Section 395.10 sets out how a court may determine an application for a CSO. If
the Immigration Minister makes an application for a CSDO then the Court may determine
the application by making a CSDO, a CSSO, or dismissing the application. This reflects
the fact that subsection 395.12(2) requires a court that has been asked to make a CSDO to
consider making a CSSO if not satisfied of the thresholds for making a CSDO (see
subsection 395.12(2)). If the Immigration Minister makes an application for a CSSO then
the Court may determine the application by making a CSSO or dismissing the application.
This reflects the fact that the Court can only make a CSDO if the Immigration Minister
applies for a CSDO (paragraph 395.12(1)(a)).
158. Section 395.11 sets out the matters that a court must have regard to in making a
CSO. Section 395.11 provides that a court must have regard to:
• the object of the Division;
• any report of an assessment from a relevant expert that was obtained under sections
395.9 and 395.43, as well as the offender's level of participation in the assessment,
• the results of any other assessment conducted by a relevant expert of the risk of the
offender committing a serious violence or sexual offence, and the offender's level of
participation on that assessment,
• any report relating to the extent to which the offender can reasonably and predictably
be managed in the community that has been prepared by relevant state and territory
corrective services or a person or body otherwise competent to assess that extent,
• any treatment or rehabilitation programs in which the offender has had the
opportunity to participate, and their level of participation,
• the level of the offender's compliance with any obligations while subject to a CSO, or
while released on parole for any serious violent or sexual offence,
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• the level of the offender's compliance with any conditions to which a visa that the
offender is, or has been, a holder of under the Migration Act 1958 is or has been
subject,
• the offender's history of prior convictions or findings of guilt, as well as the views of
the sentencing court at the time of sentence, in relation to any serious violent or sexual
offence;
• whether the offender is subject to a State or Territory PSO, and if so, the conditions
under that order, and
• any other information as to the risk of the offender committing a serious violent or
sexual offence.
159. It is a matter for the Court to determine what weight it gives each of the matters
listed in section 395.11. In regard to the consideration of a State or Territory PSO, this
applies to any State or Territory PSOs, and is not limited to those which specifically relate
to violent or sexual offences.
160. The requirement of the relevant court to consider the offender's compliance with
CSO conditions and visa conditions where applicable is appropriate in the context of
serious offenders who may have already demonstrated their compliance or non-
compliance with conditions. This will also provide the Court with additional relevant
information which can be used to assess the offender's risk of committing a serious violent
or sexual offence, as well as what conditions may be most suitable, in relation to a CSSO.
Section 395.12 - Making a community safety detention order
161. Subsection 395.12(1) sets out matters of which a Supreme Court of a State or
Territory must be satisfied in order to make a CSDO.
162. Paragraph 395.12(1)(a) provides that a valid application is made for a CSDO in
relation to a serious offender.
163. Importantly, in order to make a community safety detention order, the Court must
be satisfied, having regard to section 395.11, to a high degree of probability, on the basis
of admissible evidence, that the offender poses an unacceptable risk of seriously harming
the community by committing a serious violent or sexual offence (see paragraph
395.12(1)(b)).
164. 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 395.27(1)). The Court may consider evidence of the person's
criminal history (subsection 395.27(2)).
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165. Paragraph 395.12(1)(c) provides that to make a CSDO the Court must be satisfied
that there is no less restrictive measure available that would be effective in protecting the
community from serious harm by addressing the unacceptable risk of the offender
committing a serious violent or sexual offence.
166. Paragraph 395.12(1)(d) provides that, in a case where the offender is a holder
under the Migration Act of a visa that is subject to conditions, the Court must be satisfied
that the conditions would not be effective in protecting the community from serious harm
by addressing the unacceptable risk.
167. Note 2 under this subsection clarifies that less restrictive measures a Court can
consider includes a CSSO under the Criminal Code and visa conditions under the
Migration Act 1958. The conditions of such orders or conditions 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. A separate
application is not required for the Court to make a CSSO as a less restrictive measure. 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.
168. Subsection 395.12(2) sets out what is to occur if a court considering a CSDO
application is not satisfied to a high degree of probability that the offender poses an
unacceptable risk of committing a serious violent or sexual offence, or if the Court is not
satisfied that there is no other less restrictive measure that would be effective in protecting
the community from serious harm by addressing the unacceptable risk posed by the
offender, but is satisfied, where the offender is a holder of a visa under the Migration Act
1958 that is subject to conditions, that the conditions would not be effective in protecting
the community from serious harm by addressing the unacceptable risk.
169. The Court is required to consider making a CSSO and to seek from the
Immigration Minister a copy of the conditions that the Immigration Minister would
propose be included in a CSSO and an explanation as to why each of the proposed
conditions should be imposed on the offender. In addition, if the Immigration Minister is
aware of any facts that suggest any of those conditions should not be imposed on the
offender, then the Immigration Minister needs to include a statement of those facts
(subject to the information protections outlined in section 395.30). This ensures that a
court has all relevant information before it when determining whether each of the
conditions to be imposed on the offender is reasonably necessary, and reasonably
appropriate and adapted to the protective purpose of CSSOs.
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170. It is appropriate for the Court to consider making a CSSO at the point it considers
that the threshold for a CSDO is not met, because there is a lower threshold for making a
CSSO (see subsection 395.12(1)), and a CSSO is a less restrictive measure compared with
the detention of the offender. This provision ensures that an offender who nonetheless
poses a risk to the community is not automatically released into the community without
controls because a less restrictive measure would be effective. This protects the
community from the risk of serious harm and supports the object of the Division.
171. The Court is not obliged to make a CSSO, only to consider making one. It is open
to the Court to dismiss the application after considering making a CSSO, if the Court is
not satisfied that the threshold for a CSSO has been met (see subsection 395.10(1)).
Onus of satisfying Court
172. Subsection 395.12(3) makes it clear that the Immigration Minister bears the onus
of satisfying the Court of the required threshold in subsections 395.12(1)(b), (c) and (d).
Period of order
173. Subsections 395.12(4) and 395.12(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 protect the community from serious harm by
addressing the unacceptable risk. The period must not be longer than 3 years.
174. The note under subsections 395.12(4) reflects the fact that a CSDO may be
suspended if the offender is detained in custody in a prison other than as a result of the
order in accordance with section 395.42. Section 395.42 provides that CSOs are suspended
if a person is detained in custody in a prison.
Court may make successive community safety detention orders
175. Subsection 395.12(6) clarifies that the requirement that an order be no longer than
3 years does not prevent the Court from making successive community safety detention
orders. There is no limit to the number of community safety detention orders that may be
made against an offender violent or sexual offender. The limitation of 3 years in this
instance is key safeguard against detention or supervision beyond what is necessary, and
reflects the importance of reconsidering the risks presented by each individual at regular
intervals.
Section 395.13 - Making a community safety supervision order
176. Section 395.13 sets out the circumstances in which a court can make a CSSO.
Paragraph 395.13(1)(a) provides that a court may make a CSSO if the Immigration
Minister applies for a CSSO or if the Immigration Minister applies for a CSDO but the
Court is not satisfied that the threshold for a CSDO has been met. In addition, a court can
make a CSSO if it has reviewed a CSDO and is not satisfied that the threshold for a CSDO
continues to be met.
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177. Paragraph 395.13(1)(b) requires a court, having regard to 395.11, to be satisfied
on the balance of probabilities, on the basis of admissible evidence, that the offender poses
an unacceptable risk of seriously harming the community by committing a serious violent
or sexual offence. The Immigration Minister bears the onus of satisfying the Court of that
risk (see subsection 395.13(4)). A court must consider the factors in section 395.11 in
making that determination.
178. The 'unacceptable risk of harming the community by committing a serious
violent or sexual offence' is the same threshold that applies for a court making a CSDO.
Importantly, this does not require a court to be satisfied that the offender will actually
commit a serious violent or sexual offence - the phrase serious violent or sexual offence
covers offences with a maximum penalty of at least seven years' imprisonment. Requiring
the Court to be satisfied on the balance of probabilities reflects the standard of proof that
ordinarily applies in civil proceedings and specifically the standard that applies in post
sentence order proceedings. This requires a court to determine that it is more likely than
not that the offender poses an unacceptable risk. This is a lower standard of proof than that
which applies when making a CSDO, reflecting the fact that a CSSO is a less restrictive
measure in comparison to a CSDO.
179. Paragraph 395.13(1)(c) requires a court, where the offender is a holder under the
Migration Act 1958 of a visa that is subject to conditions, to be satisfied that those
conditions would not be effective in protecting the community from serious harm by
addressing the unacceptable risk. This will ensure the court gives use consideration to any
existing conditions that may support a decision that the unacceptable risk has been
effectively managed. Where those conditions are not sufficient to address the unacceptable
risks, the court may made conditions that are necessary, appropriate and adapted to the
unacceptable risk presented by the serious offender.
180. Paragraph 395.13(1)(d) requires a court to be satisfied on the balance of
probabilities that each of the conditions to be included in the CSSO and the combined
effect of all the conditions, is reasonably necessary, and reasonably appropriate and
adapted, for the purpose of protecting the community from that serious harm by
addressing the unacceptable risk. The requirement that the Court must be satisfied that
each condition to be included within the CSSO 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 violent or sexual offence is the
same standard that must be satisfied for ordering extended supervision order conditions. If
the Immigration Minister proposes a condition for inclusion in the order and the Court is
not so satisfied, then the Court could not include that condition in the CSSO.
181. An example of how a court may consider making a community safety supervision
order follows:
36
Person X has been granted a BVR subject to curfew and electronic monitoring
conditions (amongst other conditions). The Immigration Minister applies to the
court for a CSO. In considering whether or not to grant a CSO, the court must take
into account the visa conditions to which a BVR deemed to be granted pursuant to
s 76AA would be subject. Relevantly, that deemed grant BVR could not be subject
to curfew and electronic monitoring conditions if a CSO was granted, and so the
court must take this into account when deciding whether or not to grant a CSO.
Determining whether conditions are reasonably necessary, appropriate and adapted
182. Subsection 395.13(2) provides that in determining whether a condition is
reasonably necessary, and reasonably appropriate and adapted, the Court is required to
take into account, as a paramount consideration in all cases, the object of this Division,
namely the protection of the community from serious harm. This provision does not
preclude the Court taking other factors into account if they are relevant to each individual
case. However, regardless of what those factors are, the Court's paramount consideration
must be the protection of the community.
183. Subsection 395.13(3) provides that if the making of the order would result in the
offender being taken to be granted a visa under section 76AA of the Migration Act 1958,
then, for the purposes of paragraph 395.13(1)(d), in determining whether each of the
conditions to be imposed on the offender by the order is reasonably necessary, and
reasonably appropriate and adapted, the Court must take into account the conditions to
which the visa would be subject.
Onus of satisfying Court
184. Subsection 395.13(3) makes it clear that the Immigration Minister bears the onus
of satisfying the Court of the required threshold in subsections 395.13(1)(b), (c) and (d).
Content of order
185. If a court makes a CSSO, subsection 395.13(5) requires the Court to include a
number of matters in the order, namely:
• the name of the person, and the period that the order is to be in force
• a statement that the Court is satisfied that the threshold for the order has been met and
that each condition is reasonably necessary, and reasonably appropriate and adapted,
and a statement that the person's lawyer (whether current or future) may request a
copy of the order, and
• all of the conditions, and details of any conditions from which an exemption may be
sought, that are to be imposed on the person by the CSSO in accordance with section
395.14 and 395.15.
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186. The note to subsection 395.13(5) clarifies that a CSSO is only suspended where
an individual is detained in custody in a prison and refers to section 395.42 (which
provides that CSOs are suspended if a person is detained in custody in a prison). A CSSO
would continue to be in force if a person is detained in non-prison custody, such as
immigration detention.
Court may make successive community safety supervision orders
187. The period that the order is to be in force must be the period that the Court is
satisfied is reasonably necessary to protect the community from serious harm by
addressing the unacceptable risk, up to a maximum of three years (see paragraph
395.13(5)(d)). However, there is no maximum cap on the amount of time that an offender
may be subject to a CSO, provided the offender continues to meet the relevant thresholds
for an order (subsection 395.13(6)). A court may make further subsequent CSSOs, each
for up to three years at a time, if the offender continues to meet the threshold for a CSSO
at the end of a preceding CSSO. Similarly, a court may make a CSSO in relation to an
offender who was previously subject to a CSDO.
Automatic revocation of community safety detention orders etc.
188. Subsection 395.13(7) provides that a CSDO that is in force in relation to an
offender is revoked by force of this subsection if the Court makes a CSSO in relation to
the offender and the CSDO is in force immediately before the CSSO begins to be in force.
Section 395.14 - Conditions of community safety supervision orders
189. Section 395.14 sets out the range of conditions that a court may impose on an
offender as part of a CSSO.
190. Subsection 395.14(1) clarifies that a court may only impose conditions that it is
satisfied on the balance of probabilities, is reasonably necessary, and reasonably
appropriate and adapted, for the purposes of protecting the community from serious harm
by addressing the unacceptable risk of the offender committing a serious violent or sexual
offence (subsection 395.14(1)). The Court must be satisfied in relation to both the
individual conditions as well as the combined effect of all conditions.
191. Subsection 395.14(2) 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 serious violent or sexual offences.
192. 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 CSSO 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 violent or sexual offence. This will assist with ensuring that the
CSSO conditions and any State or Territory conditions are complementary and operable
together.
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General rules about conditions
193. Subsection 395.14(3) makes clear that the conditions that may be imposed on an
offender are conditions that protect the community from the unacceptable risk posed by
the offender. Specifically, conditions may:
• impose restrictions and obligations in relation to certain classes of conduct, and
prohibit other classes of that conduct - such as preventing international travel and
placing conditions on domestic travel, and
• impose different restrictions and obligations in relation to different classes of conduct
- such as requiring an offender to complete certain programs, but placing conditions
on other types of programs or courses.
194. This is particularly relevant to the examples of conditions in subsections
395.14(3) and (5). For the conditions described in subsection 395.14(3) that prohibit
certain conduct, the Court may instead impose conditions and obligations in relation to
that conduct. Similarly, a court may impose different restrictions, obligations and
prohibitions in relation to conduct described in subsection 395.14(3) or (5) than are
specifically referred to in those subsections. If a court was satisfied, it could also impose a
condition which limited a person's ability to relocate from a particular region in their State
of residence. Similarly, paragraph 395.14(5)(l) provides that a court could require an
offender to seek permission from a person or persons specified in the order, such as a class
of AFP officer, before commencing certain types of training or education.
195. Subsection 395.14(4) is inserted to provide that the Court cannot impose a
condition under a CSSO 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 that a CSSO cannot
impose conditions akin to detention.
196. These provisions make clear that a CSSO may include a very broad range of
conditions directed at all aspects of an offender's life. However, the possible breadth of
conditions that may be imposed does not mean that every CSSO will be so broad. This is
because each condition must be reasonably necessary, and reasonably appropriate and
adapted, for the protective purpose of the order, and a court must be satisfied of that fact
before including a particular condition in a CSSO. Therefore, the breadth of conditions
included in an order, and the extent to which they intrude on a person's life, will depend
on the particular risk posed by the offender and the kinds of conditions that the Court
considers are needed to address that risk.
General conditions
197. Subsection 395.14(5) lists a number of general conditions that may be included in
a CSSO in accordance with subsection (1). These conditions concern:
• Movement, travel and residence of an offender, including curfews.
• Travel documents, licences and changes to or use of different names.
39
• Communication and the use of technology.
• Possession of specified articles or substances.
• Employment, training, education and other activities, including recreational activities
and treatment, rehabilitation and intervention programs or activities.
• Participation in interviews and assessments and the provision of information,
including the sharing of information about the offender.
198. The examples of conditions in subsection 395.14(5) make clear that a court may
confer certain discretions on specified authorities, namely a person or class of persons that
the Court is satisfied are appropriate to be given discretion in relation to particular
conditions. This ensures that there is appropriate flexibility in the order to respond to
developing situations, while ensuring that the Court making the order sets the parameters
for any exercise of discretion. The conditions in the CSSO could, for example, empower:
• A class of AFP officer specified in the order to give an offender permission to
temporarily or permanently reside at a premise other than the one specified in the
order.
• Identified law enforcement officers to direct the offender not to communicate with
individuals that the law enforcement officers may determine from time to time (such
as persons who may not be considered a risk at the time the order is made, but who
later develop into a risk).
• A provider of countering violent extremism programs to specify the particular
programs that the offender is to participate in.
199. The examples in subsection 395.14(5) also make clear that a court may empower
a person or class of persons to give directions in connection with some conditions. For
example, this would mean a court could impose a condition that an offender only access
the internet using a certain device, not use or access certain platforms, and comply with
any reasonable directions from a specified class of AFP officer regarding access to the
internet.
200. Subsection 395.14(5)(c) clarifies that the Court is restricted by subsection
395.14(4) in that it cannot impose a condition under a CSSO that requires an offender to
remain at specified premises for more than 12 hours within any 24 hour period.
201. The note for subsection 395.14(5) refers to subsection (10) and section 395.2 to
clarify the meanings of premises, reside, residence and work.
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202. Subsection 395.14(6) places limits on directions that a specified authority may
give in relation to conditions in an order. A specified authority can only give a direction if
the direction is reasonable in all the circumstances to give effect to the relevant condition
or to the object of the Division. This is an important safeguard that ensures that directions
are connected to the underlying intent and purpose of the order that is made by the Court.
It also supports the effective operation of the relevant conditions and the CSSO itself by
ensuring day-to-day decisions can be made by court-approved persons in the interests of
both the offender and the community. The reasonableness of a direction will depend on the
particular circumstances, the content and manner of the direction, and the content of the
CSSO. For example, a CSSO could provide that an offender not associate with individuals
determined by the AFP, and the AFP could direct an offender not to communicate with a
close family member. Such a direction may not immediately appear reasonable, but if that
close family member had been convicted of multiple serious offences then such a direction
may in fact be reasonable.
Conditions relating to monitoring and enforcement
203. Subsection 395.14(7) lists a number of possible conditions which relate to
monitoring and enforcement that may be included in a CSSO in accordance with
subsection (1). These conditions concern:
• Testing for use and possession of substances.
• Photographs and fingerprints.
• Electronic monitoring, compliance with schedules of movement and carrying and use
of a mobile phone.
• Reporting to places and persons, and curfew checks.
• Entry, search and seizure relating to premises and electronic devices, items and
technology.
204. Subsection 395.14(7) makes clear that the Court may confer on a specified
authority the power to monitor specific conditions and the Court may require the offender
to comply with directions issued by the specified authority. They also confer functions on
specified authorities and empower them to undertake certain actions in relation to CSSO
conditions. This ensures that the order contains a framework for monitoring and
facilitating compliance with the order to ensure the protection of the community from
harm. The conditions in the CSSO could, for example, authorise:
• police officers to enter and search the person, the person's residence, car and storage
facility and to seize items during that search subject to conditions ordered by the
Court,
• persons involved in electronic monitoring of an offender to call the offender for the
purposes of electronically monitoring the offender, such as to direct them to charge a
device, and
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• persons involved in the provision of drug and other substance testing to test the
offender for drug and alcohol use, as well as use of prohibited or restricted chemicals
or other substances or items, including firearms.
205. The possible breadth of monitoring conditions that may be imposed does not
mean that every CSSO will be broad. Each monitoring condition imposed by the court,
and the combined effect of all conditions, must be reasonably necessary, and reasonably
appropriate and adapted, for the protective and protective purpose of the order, and a court
must be satisfied of that fact before including a particular condition in an order (paragraph
395.14(1)). Therefore, the breadth of monitoring conditions included in an order, and the
extent to which they intrude on a person's life, will depend on the particular risk posed by
the person and the kinds of conditions that the court considers are needed to address that
risk.
206. The possible conditions listed in subsection 395.14(7) make clear that a court
may empower a person or class of persons to give directions in connection with some
conditions. Any directions are subject to the requirements in subsection 395.14(6), namely
they must be reasonable to give effect to the condition and the object of protecting the
community from harm.
207. The listed conditions also make clear that the Court may authorise the exercise of
certain powers. The exercise of those powers is subject to the limitation in
subsection 395.14(8) (see below). Subsection 395.14(7) makes clear that the offender is
required to allow the various things that may be done pursuant to the exercise of those
powers.
208. Conditions in a CSSO may be framed as requiring the offender to allow or permit
certain things to occur. This is similar to the approach in the Terrorism (High Risk
Offenders Act) 2017 (NSW). For example, a court could include a condition in a CSSO to
the effect that 'the offender must allow AFP officers to attend the offender's residence to
confirm compliance with a curfew condition, and to enter the premises for that purpose'. If
such a condition were included then the AFP could attend the premises and ask the
offender to come to the door to confirm they were home during the hours of a curfew. If
the offender refused to open the door and did not allow for the AFP to enter then the AFP
would not be able to enter the premises, as the allowance required by the CSSO condition
would have not been provided. This may constitute a breach of a CSSO condition. If an
offender breaches a CSSO, section 3WA of the Crimes Act may apply to empower a
constable (a member or special member of the AFP or a member of the police force or
police service of a State or Territory) to arrest the subject without a warrant. As the
offence of breaching a CSSO is an indictable offence, a constable could then enter the
premises to arrest the offender, using reasonable force, under section 3ZB of the Crimes
Act. Alternatively, the AFP would be able to seek a monitoring warrant under the Crimes
Act.
209. Subsection 395.14(7) makes clear that a court could impose in CSSO conditions
such as:
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• A requirement to allow attendance at and entry to premises if an AFP officer attended
the premises to confirm compliance with a curfew. This would be particularly relevant
if the AFP called an offender to check compliance with curfew but the offender was
not answering those calls.
• A requirement that the offender take all reasonable steps to answer all calls from AFP
officers and from staff engaged in the electronic monitoring of the offender, and
return any unanswered calls as soon as practically possible.
• A requirement to comply with directions issued by a specified authority in relation to
the requirement to carry at all times a specified mobile phone, including to charge the
phone and ensure the offender remains contactable.
• A requirement to report to a particular person or persons at times and places specified
by that person.
210. Subsection 395.14(8) places constraints on the exercise of monitoring and
compliance related powers such as those which are listed in subsection (7). A power
exercised by a specified authority under a condition identified in subsection 395.14(7)
(other than a power to give a direction, which is dealt with separately) can only be
exercised if the person exercising the power is satisfied that it is reasonably necessary to
do so in order to give effect to the order or to facilitate or monitor compliance with the
order. As with the general directions power, what is reasonable will depend on the
particular circumstances and conditions of the CSSO. For example, directing the offender
to report to a police station at 11am twice a week may generally be reasonable, but if the
offender lived on the other side of the city, or worked in the mornings, then such a
direction may not be reasonable. Similarly, calling an offender and expecting them to
answer the phone at 3am may not appear reasonable, but may be reasonable if the offender
worked shifts and was generally available at 3am, or if there was a risk to the protection of
the community that necessitated contact at 3am. If a direction required an offender to act
in contravention with the terms of the order, such as requiring the offender to attend a
particular place between the hours that the CSSO required the offender to be at home, then
such a direction may be unreasonable (unless, for example, the curfew was an exemption
condition (see section 395.15)).
Access to lawyers
211. Subsection 395.14(9) clarifies the offender's right to access a lawyer and obtain
legal representation. The only limit on accessing, communicating or associating with the
offender's lawyer is if the lawyer is one of the individuals that the Court has prohibited
contact with pursuant to paragraph 395.14(5)(g). If the offender's lawyer is a prohibited
contact, then the offender is free to contact, communicate or associate with any other
lawyer who is not listed as a prohibited contact.
212. Subsection 395.14(10) clarifies that the phrase 'work', as used in subsection (3),
is not limited to paid work but also includes voluntary work.
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Section 395.15 - Conditions where exemptions may be granted
213. Subsection 395.15(1) provides that a court making a CSSO may identify certain
conditions included in the order as exemption conditions.
214. Subsection 395.15(2) clarifies that exemption conditions are conditions from
which the offender may seek a specific, temporary exemption.
215. Subsection 395.15(3) provides that, in addition to identifying certain conditions
as exemption conditions, the Court may include in the CSSO certain limits on the kind of
exemptions that may be sought, or set out processes that must be followed, such as
requiring an offender to apply for an exemption a certain number of days in advance.
216. An offender's application for an exemption must be made in writing to the person
or persons specified in the order, and must set out the reason for the exemption. It must
also comply with any other requirements that were set by the Court in the CSSO
(subsection 395.15(4)).
217. Subsection 395.15(5) makes clear that the person or persons identified in the
order as the specified authority for this purpose have the discretion to approve or refuse
the request for an exemption, or to approve the request subject to certain conditions. The
specified authority can require the offender to provide additional information before
making a decision on the application.
218. This provision is designed to ensure the CSSO contains a sufficient level of
flexibility to manage the offender in the community, while ensuring the Court retains
discretion and oversight in respect of any exemptions. For example, a CSSO may prohibit
an offender from going to a particular location. If the Court had made that an exemption
condition, then the offender could apply to the person or persons specified in the order for
an exemption to attend that location at a particular time for a particular reason, such as a
medical appointment. The specified authority could approve the exemption subject to
certain conditions, such as identifying a specific period of time in which the offender may
be present in that location, or requiring the offender to make themselves known to a
particular person at the relevant building before attending the appointment.
219. The fact that a condition is designated as an exemption condition does not prevent
either the offender or the Immigration Minister seeking to vary that condition, including
by seeking a variation of the condition if an exemption has been refused.
Section 395.16 - Treatment of photographs and impressions of fingerprints
220. Section 395.16 places restrictions on the use of photographs or impressions of
fingerprints taken pursuant to a condition in a CSSO, reflecting the same safeguards that
apply for control orders and ESOs.
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221. Subsection 395.16(1) provides that such photographs and impressions of
fingerprints may only be used to ensure compliance with a CSSO imposed on the
offender, including subsequent CSSOs, and cannot be used for any other purpose.
Subsection 395.16(3) makes it an offence, punishable by two years' imprisonment, to use
a photograph or impression of fingerprints for any purpose.
222. Subsection 395.16(2) requires the photograph or impression to be destroyed if it
has been more than 12 months since a CSSO or ISO was in force in relation to the
offender, and no CSSO or ISO proceedings in relation to the offender were underway in
that 12 month period, or proceedings that were underway in that 12 month period.
223. Subsection 395.16(3) provides that it is a criminal offence, punishable by two
years imprisonment, for a person to engage in conduct such as the taking of a photograph
or impression of fingerprints of or from an offender for purposes outside of 395.16(1).
Section 395.17 - Obligations relating to monitoring devices
Additional obligations on serious offender
224. Section 395.17 provides for obligations relating to monitoring devices.
225. It requires a court that includes a condition in a CSSO to wear a monitoring
device to also include in the order a number of additional requirements and authorisations
relating to electronic monitoring (subsections 395.17(1)-(3), (5)). The same preconditions
for the exercise of any powers pursuant to a condition in an order apply to control orders,
ESOs and CSSOs (subsection 395.17(4)).
226. Subsection 395.17(1) provides that if a court includes in a CSSO a requirement
that a serious offender wear a monitoring device under paragraph 395.14(7)(d), then the
Court must also include in the order a number of additional requirements and
authorisations relating to electronic monitoring. The additional requirements and
authorisations ensure that the offender cannot undermine the effectiveness of a court-
imposed requirement that the offender wear an electronic monitoring device. Ensuring the
effective operation of a requirement to wear a monitoring device is designed to support
monitoring of a serious offender's compliance with other related conditions, such as
restrictions on movement and curfews.
227. Paragraph 395.17(1)(a) provides that a court must include the additional
requirement that the offender wear the monitoring device at all times. This seeks to ensure
that if a court imposes a requirement that a subject wear a monitoring device, the device
must be worn until the requirement has been removed or the order has otherwise ceased to
be in force. This is a necessary practical arrangement for electronic monitoring for
operational and technical reasons.
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228. Paragraph 395.17(1)(b) provides that a court must include the requirement
referred in paragraph 395.14(7)(e), that the offender carry a particular mobile phone,
answer or return any calls made by a specified authority and comply with any directions in
relation to the requirement to carry a mobile phone. This would allow a person or class of
persons identified in the order to, for example, call an offender to arrange for the device to
be inspected or replaced if it was malfunctioning.
229. Paragraph 395.17(1)(c) allows a court to include in a CSSO requirements that the
offender allow certain things, such as allowing the installation of a monitoring device. If
the offender did not allow that to occur, it may constitute a breach of the condition.
230. Subparagraphs 395.17(1)(c)(i) and (ii) provide that a court must include the
additional requirement that the offender allow a specified authority (for example, an
electronic monitoring service provider) to install, repair or fit the monitoring device or any
related monitoring equipment, and allow a specified authority to enter the offender's
residence at any time for any purpose relating to the electronic monitoring of the subject.
This ensures that the offender is required to ensure that a person or class of persons
identified in the order can take all the steps necessary to ensure a monitoring device and
related equipment is installed correctly and continues to work effectively. For example, a
person specified in the order could enter premises to inspect, install or repair a device or
equipment, or require the offender to attend a certain place at a certain time for the
purposes of having any electronic monitoring device or equipment replaced, repaired or
inspected.
231. Subparagraphs 395.17(1)(c)(iii) and (iv) provide that a court must include the
additional requirement that the offender take any steps specified in the order, and any
other reasonable steps to ensure the monitoring device and any related monitoring
equipment remain in good working order. If the offender becomes aware that the
monitoring device and any related monitoring equipment is not in good working order,
then the offender must notify the person or persons specified in the order as soon as
reasonably practicable. Steps specified in the order will be those that the Court considers
necessary to support the effective operation of the device and equipment, such as the
timing and duration of charging, or requirements that the offender not tamper with, affix
objects to, damage, disable or remove any electronic monitoring device or equipment used
for the electronic monitoring. Consistent with the current provisions, 'reasonable steps' is
intended to ensure sufficient flexibility in the order, including to address unforeseen
circumstances. For example, it may include notifying an authority specified in the order if
the device became too loose, and allowing that authority to adjust the device.
232. Subparagraphs 395.177E(1)(c)(v) and (vi) provide that a court must include the
additional requirement that the offender allow a person or class of persons identified in the
order, a police officer or a corrective services officer to remove the monitoring device, and
allow a police officer to remove any related monitoring equipment, including equipment
that may be located at the offender's home. This ensures that the offender is required to
facilitate the removal of devices and equipment where it is no longer needed (for example,
because the offender is detained in custody, or because the condition is removed from the
order or the order ends).
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Powers of specified authorities and others
233. Subsection 395.17(2) provides for a number of powers and authorisations that are
complementary to the additional obligations outlined in subsection 395.14(7)(d). These
authorisations are intended to avoid any doubt that these actions may be taken by the
specified persons. In addition to imposing certain obligations on a serious offender, a court
making an order that includes a requirement to wear an electronic monitoring device must
also include the following authorisations in the order:
• An authorisation for a person or persons specified in the order to enter the offender's
residence at any reasonable time for any electronic monitoring related purpose
(paragraph 395.17(2)(a)).
• An authorisation for a person or persons specified in the order to install, repair or fit
the monitoring device and any related monitoring equipment (paragraph
395.17(2)(b)).
• An authorisation for a person or persons specified in the order, or a police officer, to
take steps specified in the order to ensure the device and related equipment are, and
remain, in good working order (paragraph 395.17(2)(c)). This may include, for
example, inspections of the device.
• An authorisation for a person or persons specified in the order, police officers or
corrective services officers to remove the monitoring device (paragraph 395.17(2)(d)).
For example, if an offender were arrested and taken to a prison to be detained, this
provision would allow police or corrective services officers to remove the monitoring
device, as it would not be needed while the offender was detained.
• An authorisation for one or more police officers to remove related monitoring
equipment (paragraph 395.17(2)(e)). This would be relevant where the monitoring
device has been removed, for example because an offender is detained in custody, and
may include police officers accessing a residence even if the offender is not present.
As a result, this power is limited only to police officers.
234. Subsection 395.17(3) clarifies the operation of the authorisations where an
offender is no longer required to be subject to electronic monitoring, either because the
requirement to wear an electronic monitoring device is removed or the control order
ceases to be in force. If the offender who was subject to the requirement to wear an
electronic monitoring device still has the electronic monitoring device installed on them,
then subsection 395.17(3) authorises a person or persons specified in the order to remove
the monitoring device, even though the authorisation referred to in subsection 395.17(2)
may no longer be in force. In those circumstances one or more police officers would also
be authorised to remove any related monitoring equipment (noting such equipment may be
at the offender's residence).
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235. Subparagraph 395.17(3)(b)(iii) and paragraph 395.17(3)(d) provide that if an
offender is detained in custody, a monitoring device and related monitoring equipment
may be removed in accordance with paragraph (2)(d) or (e) even though the offender is
not required to comply with the conditions in an order while it is suspended.
Powers relating to monitoring devices and related electronic equipment
236. Subsection 395.17(4) sets out preconditions for the exercise of the powers
referred to in paragraphs 395.17(2)(a), (b), (d) and (e), and subsection 104.5A(3). Before
entering a residence pursuant to paragraph 395.17(2)(a), installing, repairing or fitting a
device or equipment pursuant to paragraph 395.17(2)(b), removing a monitoring device
pursuant to paragraph 395.17(2)(d) or removing related monitoring equipment pursuant to
paragraph 395.17(2)(e), the specified authority or police officer or corrective services
officer (as relevant) must inform the offender of certain matters. The person or persons
proposing to take the action must inform the subject of the order that the installation,
repair, fit or removal of the device is to occur and of the proposed timing for those actions
(paragraphs 395.17(4)(a) and (b)). The person or persons proposing to take the action must
also inform the offender that they may consent to the relevant action and that, if they do
not consent, reasonable force may be used to take the action, including to enter the
offender's residence in order to take the action (paragraphs 395.174)(c) and (d)). This
ensures that the offender cannot frustrate the operation of an order by refusing to consent
to the relevant actions.
237. Subsection 395.17(5) authorises a police officer to take an action, including
entering the offender's residence to take an action, if an offender does not give the consent
referred to in paragraph 104.5A(4)(c). This makes clear that use of force by police officers
in the circumstances outlined above is authorised by the legislation.
Section 395.18 - Copy of a community safety supervision order must be given to serious
offender's lawyer
238. Section 395.18 provides that a copy of a CSSO must be given to a serious
offender's lawyer as soon as practicable after it is requested by the lawyer. This replicates
an equivalent safeguard in the control order scheme and the HRTO regime and ensures
that any current or future lawyer for the offender is able to access details of the order that
applies to their client. This section does not entitle the lawyer to request, or be given a
copy of, a document other than the order.
Subdivision D - varying a community safety supervision order
239. Subdivision D sets out the process for applying for, and making a variation to, a
CSSO.
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Section 395.19 - Application for variations of community safety supervision orders
240. Subsection 395.19(1) provides that the Immigration Minister, or a legal
representative of the Minister, must apply to a Supreme Court of a State or Territory to
vary a CSSO by removing or varying a CSSO condition if the Minister is satisfied that the
condition is no longer reasonably necessary, or reasonably appropriate and adapted for the
purpose of protecting the community from serious harm by addressing the unacceptable
risk of the serious offender committing a serious violent or sexual offence.
241. Note 1 to subsection 395.19(1) clarifies that the Immigration Minister (or their
legal representative) may also apply for other variations of the order, including the
addition of new conditions to the order in the same application.
242. Note 2 to subsection 395.19(1) provides that a copy of the application must be
given to the offender under section 395.29 (which provides the requirements for providing
a serious offender with copies of applications made by the Immigration Minister, or a legal
representative of the Immigration Minister).
243. Subsection 395.19(2) provides that the Immigration Minister, the serious offender
or a legal representative of either party may apply to a Supreme Court to vary a CSSO by
adding, varying or removing one or more conditions mentioned in the order.
244. Subsection 395.19(3) provides that the application, made under subsections (1) or
(2), must be made to the Supreme Court of the State or Territory where the offender
resides. The note for subsection 395.19(3) references the definition of 'resides' in section
395.2 which includes a place where an offender temporarily resides.
245. Subsection 395.19(4) provides that an application, made under subsections (1) or
(2), must include a copy of the conditions that are proposed to be varied. The subsection
further provides that, if the Immigration Minister or a legal representative of the
Immigration Minister applies for the variation of the CSSO, then the application must also
include the following material:
• an explanation of why each condition that is sought to be added or varied should be
added or varied; and
• if the Minister is aware of any facts relating to why any of those conditions should not
be added or varied--a statement of those facts (except those that are likely to be
protected by public interest immunity); and
• the outcomes and particulars of all previous applications for variation (whether made
by the Immigration Minister or the serious offender).
246. Paragraph 395.19(4)(c) provides that if the offender, or a legal representative of
the offender, applies for the order to be varied then the application must include the
outcomes and particulars of all previous applications for variation made by the offender or
on their behalf under section 395.19.
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247. In addition, if the Immigration Minister obtained a report under section 395.43 in
relation to the offender for the purposes of determining whether to apply for the variation,
the Immigration Minister must include a copy of that report.
248. Subsection 395.19(5) provides that an applicant, who is the offender or their legal
representative, may also include an explanation as to why each condition that is sought to
be varied or removed should be varied or removed, and must ensure a copy of the
application is served on the Immigration Minister within two business days of the
application being made.
249. The different obligations on the Immigration Minister and the serious offender
reflect the different resources at their disposal in putting together an application for a
variation, and the fact that the Immigration Minister is under an obligation to satisfy the
Court that the conditions to be included in an order are reasonably necessary, and
reasonably appropriate and adapted for the protective purpose of the order.
250. Subsection 395.19(6) provides that the Immigration Minister, one or more AFP
members, the serious offender or one or more representatives of the serious offender, may
adduce additional evidence or make additional submissions in relation to an application to
vary a CSSO.
251. Subsection 395.19(7) makes clear that subsection 395.19(6) does not otherwise
limit the power of the Court to manage proceedings to vary a CSSO.
Section 395.20 - Varying a CSSO other than by consent
252. Paragraph 395.20(1)(a) provides that if an application, made under
subsection 395.19(1) or (2), is made to vary an order by adding or varying conditions, then
the Court may vary the order if satisfied on the balance of probabilities that each of the
conditions being added or varied is reasonably necessary, and reasonably appropriate and
adapted for the protective purpose of the order.
253. Paragraph 395.20(1)(b) provides that if an application, made under
subsection 395.19(1) or (2), is made to vary an order by removing conditions, then the
Court may vary the order if not satisfied on the balance of probabilities that each condition
being removed is reasonably necessary, and reasonably appropriate and adapted for the
protective purpose of the order.
254. Subsection 395.20(2) provides the object of the Division (the protection of the
community from serious harm by providing that non-citizens who pose an unacceptable
risk of committing serious violent or sexual offences and have no real prospects of their
removal from Australia becoming practicable in the reasonably foreseeable future are
subject to a CSO) is the paramount consideration for the Court in determining whether a
condition is reasonably necessary, and reasonably appropriate and adapted.
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255. Subsection 395.20(3) clarifies that the Immigration Minister bears the onus of
satisfying the Court as to whether the 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 violent or sexual offence.
256. Subsections 395.20(4), (5) and (6) provide for the Court to appoint one or more
relevant experts for the purpose of proceedings relating to an application for variation. If
the Court appoints an expert, subsections 395.9(5) to (9) - which provide for the role of a
relevant expert (to conduct and report on an assessment), the serious offender's attendance
at the assessment and the use of information from the assessment - apply in relation to the
proceedings. The Immigration Minister or the serious offenders may nominate one or
more experts to be appointed by the Court (subsection 395.20(5)), and are able to call
another relevant expert as a witness in the proceedings (subsection 395.20(6)).
Section 395.21 - Varying a CSSO by consent
257. Section 395.21 provides for applications to vary a CSSO where there is consent
between the parties. Subsections 395.21(1) and (2) provide that the Immigration Minister
and the serious offender, or the legal representative of either party, may apply to a
Supreme Court, in the State or Territory that the serious offender resides, to vary a CSSO
by varying or removing a condition. The Court may vary the order if satisfied that the
other party has given written consent to the variation sought by the applicant, the variation
does not involve adding conditions to the CSSO and the variation is appropriate in the
circumstances (subsection 395.21(3)).
258. This provides for a more streamlined process where the parties are in agreement
about varying conditions or removing conditions to an order. New conditions cannot be
added by consent, reflective of the Court's role in setting the conditions to be imposed by
a CSSO.
Section 395.22 - Terms of a varied CSSO
259. Section 395.22 provides that if a court varies an order following an application
under section 395.20 or 395.21, or following a review of a CSSO under section 395.26,
the order must:
• state that the Court is satisfied of the preconditions for making a variation, as
specified in subsection 395.20(1) or 395.21(3) for applications to vary including by
consent, or as specified in subsections 395.26(1), (3) or (4) (as required) for variations
following review of a CSSO (paragraph 393.22(a)); and
• specify the variations that are to be made to the conditions in the CSSO (paragraph
393.22(b)); and
• state the period during which the order, as varied, is in force (paragraph 393.22(c)),
and
• state that the offender's lawyer may request a copy of the order (paragraph 393.22(d)).
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260. A court may provide that a varied CSSO is to be in force for the same period that
the order was originally intended to be in force - meaning the variation would have effect
for the full length of the CSSO. However, the Court also has the flexibility to temporarily
vary an order, by stating that a particular condition that is added, varied or removed is only
to be added, varied or removed for a specified period of time, for example a one-month
period. This gives the Court the flexibility to set conditions that respond to changing
circumstances, for example by allowing the serious offender to reside at a different
address for six weeks while repairs are carried out at their ordinary place of residence.
Subdivision E - Review of community safety order
Section 395.23 - Periodic review of community safety order
When application for review must be made
261. Subsections 395.23(1) and (2) provide that the Immigration Minister, or a legal
representative of the Immigration Minister, must, apply to a Supreme Court of a State or
Territory for a review of a CSO within 12 months after the order has been in force; or 12
months after the order was most recently reviewed. However, if at the time an application
for review would otherwise be due and the order is suspended under section 395.42
because the offender is detained in custody in a prison, then the application for review
does not need to be made at that time, as the offender would not be required to comply
with the terms of the CSO at that time. Instead, the Immigration Minister must apply for
review on or before the day the offender's detention ends. This ensures that an application
for review of the order will be made before the offender is again required to comply with
the conditions of a CSSO, or continues to be detained in custody pursuant to a CSDO.
262. Subsection 395.23(3) makes clear that the Immigration Minister does not need to
apply for a review if an application for a new CSO in relation to the offender has been
made and has not been withdrawn.
263. The note to subsection 395.23(1) advises that a copy of the application must be
given to the offender under section 395.29.
Review must be conducted before end of period
264. Subsection 395.23(4) sets out that upon receiving the application, the Court must
begin the review of the order before the end of the applicable period referred to in
395.23(2).
265. The note under subsection 395.23(4) outlines that the process for reviewing a
CSO is provided by section 395.25, to increase readability.
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Where an application must be made
266. Paragraph 395.23(5)(a) sets out that an application for the review of a CSO must
be made to the Court of the State or Territory in which the serious offender is residing. For
a CSDO, that means the State or Territory in which the prison in which the serious
offender is detained is located, and for a CSSO, it means the State or Territory in which
the serious offender resides (paragraph 395.23(5)(b)). The note refers to the definition of
'reside' in section 395.2(1) which provides that it includes reside temporarily.
Order ceases to be in force if application not made
267. Subsection 395.23(6) ensures that if an application is not made in accordance
with this section, the order ceases to be in force at the end of the period referred to in
subsection 395.23(2).
Section 395.24 - Review of community safety order on application
268. Subsection 395.24(1) provides that the Immigration Minister and the serious
offender, or the legal representative of either party, may apply to a Supreme Court for
review of a CSO.
269. Note 1 refers to section 395.25, which sets out the process for reviewing a CSO.
270. Note 2 refers to section 395.29, which requires a copy of an application for
review by the Immigration Minister to be given to the serious offender.
271. Subsection 395.24(2) provides that an application by, or on behalf of the
Immigration Minister, must include any report that was obtained under section 395.43 for
the purpose of determining whether an application for a review should be made.
272. Subsection 395.24(3) provides that the Court may review the order if the Court is
satisfied that there are new facts or circumstances which would justify reviewing the order
(subsection 395.24(3)(a)) or it would be in the best interests of justice, having regard to the
purposes of the order and the manner and effect of its implementation, to review the order
(subsection 395.24(3)(b)).
273. Subsection 395.24(4) requires the Court to dismiss the application if the Court is
not satisfied that the requirements in subsection 395.24(3) have been met.
274. Subsection 395.24(5) provides that the application for review must be made in the
Supreme Court of the State or Territory in which the serious offender is residing. For a
CSDO, that means the State or Territory in which the prison in which the serious offender
is being detained is located. For a CSSO, that means the State or Territory in which the
serious offender resides.
275. The note refers to the definition of 'reside' in subsection 395.2(1), which
provides that it includes reside temporarily.
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Section 395.25 - Process for reviewing a community safety order
276. Subsection 395.25(1) provides that section 395.25 applies if a Supreme Court of a
State or Territory reviews a CSO that is in force in relation to a serious offender.
Parties to the review
277. Subsection 395.25(2) provides for clarity, that the parties to the review are the
Immigration Minister and the serious offender.
Relevant experts
278. Subsections 395.25(3)-(5) provide who the Court can appoint as a relevant expert
for the purposes of the review. The Court may appoint one or more relevant experts for the
purposes of the review, and if the Court does so, subsections 395.9(5) to (9) apply in
relation to the review.
279. Subsection 395.25(4) provides that the Immigration Minister or the serious
offender, or a legal representative of either party, may nominate one or more relevant
experts for the purposes of appointing an expert under subsection 395.25(3).
280. Subsection 395.25(5) provides that the Immigration Minister, or the serious
offender, or a legal representative of either party, can call their own relevant expert as a
witness in the review.
Affirming or revoking the order
281. Subsection 395.25(6) provides that the Court reviewing an order may affirm the
order (including by affirming the order with variations made under section 395.26) if after
having regard to the matters in section 395.11, the Court is satisfied it could have made:
• a CSDO under section 395.12, meaning the Court must be satisfied the preconditions
for making a CSDO have been met (paragraph 395.25(6)(a)),
• a CSSO under section 395.13, or
• a CSSO disregarding paragraph 395.13(1)(d), meaning the Court must be satisfied the
pre-conditions for making a CSSO have been met without considering whether the
conditions are reasonably necessary, and reasonably appropriate and adapted. This is
because section 395.26 sets out the process for varying conditions if the Court is
satisfied that a CSSO should be affirmed but is not satisfied as to each individual
condition (paragraph 395.25(6)(a)).
282. The note refers to subsection 395.11(3) and section 395.27, which provide that
the rules of evidence and procedure for civil matters apply when a court has regard to the
relevant matters in accordance with section 395.11.
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283. Subsection 395.25(7) provides that if the Court reviewing a CSDO does not
affirm the CSDO under subsection 395.25(6), then the Court must consider making a
CSSO and seek the following material from the Immigration Minister to support that
consideration:
• a copy of the proposed conditions that would be sought (subparagraph
395.25(7)(b)(i))
• an explanation of why each of the conditions should be imposed on the serious
offender (subparagraph 395.25(7)(b)(ii)), and
• a statement of any facts relating to why any of the conditions should not be imposed,
if the Immigration Minister is aware of any such facts, except any facts that are likely
to be protected by public interest immunity (subparagraph 395.25(7)(b)(iii)).
284. Paragraph 395.25(7)(c) provides that if the Court does not make a CSSO in
relation to the serious offender, then it must revoke the CSDO.
285. The note refers to subsection 395.13(6), which provides that a CSDO is revoked
if a CSSO is made.
286. Subsection 395.25(8) provides that if the Court reviewing a CSSO is not satisfied
of the matters referred to in paragraph 395.25(6), the Court must revoke the order.
Onus of Satisfying Court
287. Subsection 395.25(9) ensures the Immigration Minister makes reasonable
inquiries to ascertain any facts known to any Commonwealth law enforcement officer that
would reasonably be regarded as supporting a finding that the order should not be
affirmed. This would ensure procedural fairness.
288. Subsection 395.25(10) provides that the Immigration Minister bears the onus of
satisfying the Court that the preconditions for making a CSDO or CSSO under
sections 395.12 or 395.13 have been met.
289. Subsection 395.25(11) requires the Immigration Minister to provide certain
exculpatory information to the Court. Subsection 395.25(11) requires the Immigration
Minister (or their legal representative) provide to the Court conducting a review, a copy of
any material they possess, 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, or should not be affirmed in the terms in which it is
made, or
• if the Court is considering making a CSSO under subsection 395.25(7) after reviewing
a CSDO, that a CSSO should not be made.
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Subsection 395.26 - Varying a community safety order after review
Varying the period specified by a community safety order
290. Section 395.26 provides for varying CSOs after review.
291. Subsection 395.26(1) provides that the Court must vary a CSO to specify a
shorter period for which the order will be in force if the Court decides to affirm the CSO
under subsection 395.25(6), but is not satisfied that the period currently specified is
reasonably necessary to protect the community from serious harm by addressing the
unacceptable risk. Subsection 395.26(6) provides that the Immigration Minister bears the
onus of satisfying the Court of this matter.
Varying or removing conditions
292. Subsection 395.26(2) provides that the Court must vary, or remove, a condition
imposed by a CSSO, if the Court affirms the order but is not satisfied that the condition is
reasonably necessary, and reasonably appropriate and adapted, for the protective purpose
of the order.
293. Subsection 395.26(3) clarifies that the Court must be satisfied that a condition
varied under subsection 395.26(2) is reasonably necessary, and reasonably appropriate and
adapted, for the protective purpose of the order. Subsection 395.26(6) provides that the
Immigration Minister bears the onus of satisfying the Court of this matter.
Varying to add conditions
294. Subsection 395.26(4) provides that the Court may vary the CSSO to add one or
more conditions after the review, if satisfied that the conditions are reasonably necessary,
and reasonably appropriate and adapted, for the protective purpose of the order.
Subsection 395.26(6) provides that the Immigration Minister bears the onus of satisfying
the Court of this matter.
Object of this Division
295. Subsection 395.26(5) provides that the object of the Division is the paramount
consideration that must be taken into account by the Court in all cases, in determining
whether a condition that is to be varied or imposed on the offender is reasonably
necessary, and reasonably appropriate and adapted.
Subdivision F - Provisions relating to CSO proceedings
Section 395.27 - Civil evidence and procedure rules in relation to CSO proceedings
296. Subsection 395.27(1) provides that, in any CSO proceeding, the Supreme Court
of a State or Territory must apply the rules of evidence and procedure for civil matters.
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297. Subsection 395.27(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 serious offender's level of compliance with any conditions to which they have been
subject while on release on parole for any offence, or while subject to a CSSO, the serious
offender's history of any prior convictions for, and findings of guilt in relation to, any
offence, and the level of the offender's compliance with any conditions imposed on them
by a visa under the Migration Act 1958.
Section 395.28 - Adducing evidence and making submissions
298. Section 395.28 ensures that any party to a CSO proceeding is entitled to adduce
evidence (including by calling witnesses or producing material), or make submissions, to
the Court in relation to the proceeding.
Section 395.29 - Giving copies of applications etc. to serious offenders
299. Section 395.29 sets out the requirements for providing a copy of an application
and materials to the serious offender and their legal representative. It applies where the
Immigration Minister, or their legal representative, (the applicant) applies to a Court for a
CSO, a variation of a CSSO under section 395.19, or a review of a CSO (subsection
395.21(1)). The requirements in subsections 395.29(2)-(4) are subject to the information
protections outlined in sections 395.30, 395.31 and 395.32. This ensures that sensitive
information contained within applications and materials are appropriately protected.
300. Subsection 395.29(2) provides that the applicant must, within 2 business days
after making the application, personally give a copy of the application to the serious
offender and their legal representative (subject to sections 395.30 to 395.32). The note
clarifies that if a serious offender is detained in custody at the time the application or
material needs to be given, the requirements under section 395.33 would apply. Providing
a copy of the application to the serious offender and their legal representative within these
timeframes ensures the serious offender, as soon as possible, understands the case that has
been made against them and can commence preparations to respond. This also operates in
addition to any other applicable procedural rights in a civil proceeding.
301. Subsection 395.29(3) provides that if the Court seeks certain materials from the
Immigration Minister under paragraphs 395.12(2)(a) or 395.25(7)(b), the applicant must,
within two business days after the material is provided to the Court, personally provide a
copy of that material to the serious offender and their legal representative (subject to
sections 395.30 to 395.32). The materials captured by this subsection are a copy of the
conditions that the applicant would propose be included in a CSSO, an explanation as to
why each of the proposed conditions should be imposed on the serious offender, and a
statement of any facts the applicant is aware of that suggest any of the conditions sought
should not be imposed on the serious offender (except any facts that are likely to be
subject to public interest immunity). Providing these materials to the serious offender and
their legal representative ensures that the serious offender is aware of the order being
sought, any allegations made against them, and has the opportunity to respond.
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302. Subsection 395.29(4) provides that if neither the serious offender nor their legal
representative are present during proceedings in which a CSO is made or varied, the
applicant must, within two business days after the order is made or varied, personally give
the serious offender and their legal representative a copy of the order that is made, or the
order as varied (subject to sections 395.30 to 395.32). While the serious offender is
entitled to participate in CSO proceedings, this provision ensures that if the serious
offender or their legal representative does not participate they will be made aware of the
contents of any orders they are made subject to.
Section 395.30 - Information excluded from application or material - national security
information
303. Section 395.30 provides the specific circumstances in which sensitive national
security information may be excluded from the copy of the application or materials that
are provided to the serious offender or their legal representative (the recipient) under
section 395.29.
304. Subsection 395.30(1) provides that the section applies if the applicant gives a
copy of an application or material to the recipient under subsection 395.29(2) or (3).
305. Subsection 395.30(2) provides that the applicant is not required to include any
information in the application or material provided to the recipient if a Minister is likely to
take any actions in relation to the information under the National Security Information
(Criminal and Civil Proceedings) Act 2004 (NSI Act) (paragraph 395.30(2)(a)) or seek an
order of a court preventing or limiting disclosure of the information (paragraph
395.30(2)(b)). Paragraph (a) refers to 'a Minister' because it is the Attorney-General (the
decision-maker) who can issue certificates and seek orders under the NSI Act to protect
sensitive information.
306. There are a number of actions the decision maker can take under the NSI Act in
relation to sensitive information contained within an application or materials that are
provided to the recipient. For example, the decision maker can:
• give a certificate under Subdivision C of Division 2 of Part 3A to provide interim
protection for sensitive information;
• request the Court may make protective orders under 38L at the end of the certificate
process that provide whether national security information subject to the certificate
should be disclosed and if so, in what form, or whether to allow a witness to be called;
• request the Court make orders under section 38B to give effect to an agreement
between the parties and the decision maker on an arrangement about the disclosure,
protection, storage, handling or destruction of national security information in the
proceeding; or
• request that the Court make orders under subsection 19(3A) in relation to the
disclosure, protection, storage, handling or destruction of national security
information in the proceeding.
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307. The Court orders referred to in paragraph 395.30(2)(b) include orders that the
Court may make under its inherent jurisdiction to limit disclosure of information.
308. Subsection 395.30(3) provides that the applicant must (subject to
subsection 395.30(4)) personally give the recipient a 'complete copy' of the application or
material if:
• The decision maker decides not to take any action under paragraph 395.30(2)(a) or (b)
(paragraph 395.30(3)(a))
• The decision maker gives a certificate under Subdivision C of Division 2 of Part 3A
of the NSI Act (paragraph 395.30(3)(b)), or
• a court makes an order in relation to any action taken by the decision maker under
paragraph 395.30(2)(a) or (b) (paragraph 395.30(3)(c)).
309. The applicant must, subject to subsection 395.30(4), still give a complete copy of
the application or material to the recipient if the events in paragraphs (b) and (c) above
occur, because not all certificates under Subdivision C of Division 2 of Part 3A of the NSI
Act, and not all court orders, necessarily preclude the serious offender from seeing the
information which is subject to the certificate or order. For example, the decision maker is
able to give a certificate under Subdivision C of Division 2 of Part 3A that enables
disclosure of the information to the serious offender, but prevents broader disclosures,
including to the public. Similarly, the Court may make suppression or non-publication
orders which prevent inappropriate disclosure of certain information to the public (such as
the name of the serious offender), but the information would still be provided to the
serious offender.
310. However, subsection 395.30(4) provides that the applicant's obligation to give a
'complete copy' of the application or material to the serious offender is subject to the
certificate referred to in paragraph (3)(b) (paragraph 395.30(4)(a)), or any order made by
the Court (paragraph 395.30(4)(b)). This clarifies that where a certificate or order prevents
disclosure of the information to the serious offender, the requirement to give a complete
copy of the application or material to the serious offender does not apply.
311. For example, the Immigration Minister could file a CSDO application that
contains sensitive national security information, the disclosure of which is likely to
prejudice national security. If the NSI Act has been invoked in the proceedings, and the
Immigration Minister provides notice of an expected disclosure of national security
information (i.e. the sensitive information in the CSDO application) under section 38D of
the NSI Act, the decision maker could then issue a civil non-disclosure certificate under
section 38F that provides whether the information may be disclosed, to whom and in what
form. The NSI Act enables the decision maker to provide the document with the
information redacted, and provide summaries of the information or statements of facts that
it would be likely to prove.
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312. The Court would then be required to hold a closed hearing and make one of the
orders under section 38L in respect of the information covered by the certificate. After
hearing submissions, the Court could, for instance, make an order under paragraph
38L(2)(e) of the NSI Act that the sensitive information not be disclosed, but that a
redacted version of the sensitive material, together with a summary of the sensitive
material, be disclosed in the CSDO application. Subsections 395.30(2), (3) and (4) will
result in the serious offender being provided with the redacted document and summary in
this example, rather than the original sensitive material. In making its final determination
regarding the CSDO application, the Court would have no further regard to the original
sensitive material and would only consider the information contained in the redacted
document and summary provided to the recipient.
313. Existing judicial safeguards around the use of the NSI Act will also apply to
ensure that a serious offender always knows the case against them and will be able to
contest any claims under the NSI Act in accordance with existing practice. Courts will
ultimately retain the power to determine whether to make these orders, and may exercise
their inherent jurisdiction to stay proceedings entirely if satisfied that withholding
information would involve unacceptable injustice or unfairness.
314. Subsection 395.30(5) provides that a copy of the application or material must be
given under subsection 395.30(3) within two business days of the event referred to in
subsection 395.30, and within a reasonable period before:
• the preliminary hearing referred to in section 395.9 in relation to the appointment of
one or more relevant experts, if it is a CSO application, or
• the hearing on the application, if it is an application to vary or review a CSO.
Section 395.31 - Information excluded from application or material - public interest
immunity
315. Section 395.31 allows the applicant to exclude sensitive exculpatory information
from an application or materials provided to the serious offender where it is excluded on
the basis of public interest immunity (PII). Exculpatory information is information that
would support a finding that an order should not be made.
316. PII provides immunity from the disclosure of sensitive information that the holder
of the information would otherwise be under a legal obligation to provide. PII is generally
claimed by a Commonwealth, State or Territory government or agency to withhold
information on a number of grounds, such as prejudice to national security, to protect the
identity of an informant, or prejudice to Australia's international relations. Importantly,
the ultimate decision-maker when determining whether a PII claim should be upheld is the
Court. In making its decision, the Court will balance the public interest in protecting
sensitive information whose disclosure may, for instance, prejudice Australia's national
security, with the public interest in ensuring that a party receives a fair hearing by being
provided with information that is relevant to the proceedings.
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317. When the applicant gives a copy of a CSO application to the recipient, the
application must include any report or document that the applicant intends to rely upon
(inculpatory information) as well as all material or facts of which the Immigration
Minister is aware that would reasonably be regarded as supporting a finding that the order
should not be made (exculpatory information) (see subsections 395.8(2) and (3)). The
applicant is not required to include all inculpatory information in the application, as the
applicant may choose either to not include sensitive inculpatory material in the application
or to include it with the sensitive information redacted. However, the provisions require all
exculpatory material to be included in the application.
318. Subsection 395.31(1) provides that section 395.31 applies if the applicant gives a
copy of an application or material to the recipient under subsection 395.29(2) or (3), and
exculpatory information is excluded from the application or material on the basis of PII.
319. Where this occurs, subsection 395.31(2) requires the applicant to give written
notice to the recipient, personally stating that the information has been excluded from the
application or material on the basis of PII. The notice must be given at the same time a
copy of the application or material is given to the recipient. This is an important safeguard,
as it ensures the serious offender has the opportunity to contest the exclusion of the
information from the application or material, and to seek to access that information, for
example through a subpoena. This process is consistent with the way that PII claims
would be made in other proceedings, whether criminal or civil. The Court will ultimately
determine whether it should uphold the PII claim. In doing so, the Court will consider the
public interest in ensuring the serious offender receives a fair hearing and the public
interest in ensuring there is no prejudice to national security. Where the PII claim is
upheld, the information that is subject of the PII claim will not form part of the application
or material, or be able to be relied upon in the proceedings.
320. Subsection 395.31(3) is an avoidance of doubt provision to make clear that
nothing in section 395.31 will oblige a serious offender, who has sought to access
information over which PII was claimed, to satisfy a court that a PII claim should not be
upheld.
321. The legislative note following subsection 395.31(3) further explains the normal
operation of PII. To claim PII, a person claiming the immunity (for example, the
Immigration Minister) must make and substantiate the claim, and satisfy the Court that the
claim should be upheld. A person claiming the immunity would have to satisfy the Court
that the public interest arguments in favour of withholding the sensitive material outweigh
the public interest in disclosure of that material. It will ultimately be up to the Court to
determine where the balance of the public interest lies between protecting that information
(in full or in part) and ensuring the serious offender has access to the material to respond
to the proceedings.
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322. Importantly, nothing in section 395.31 precludes the Court from exercising its
inherent powers to stay proceedings if the Court considers that the serious offender cannot
receive a fair hearing. For example, the Court may uphold a PII claim to withhold
sensitive information on the basis that the public interest in not prejudicing national
security outweighs the public interest in disclosing that material to the serious person for
the purposes of ensuring a fair hearing. However, the Court may decide to stay the
relevant proceeding on the basis that it would not be in the interests of justice to proceed
with a hearing in which the serious offender had been denied the information.
323. Furthermore, all information that the Immigration Minister relies on in the
relevant application must be provided to the serious offender to ensure their right to a fair
hearing. Where the Court determines that information should be withheld from the serious
offender on the basis of PII, that information will not form part of the proceedings. As
such, neither the Immigration Minister nor the Court may rely on information that is not
provided to the serious offender.
Section 395.32 - Information excluded from application and material
324. Section 395.32 allows the Immigration Minister to apply to the Supreme Court of
a State or Territory for an order in relation to the manner in which terrorism material, child
abuse material or abhorrent violent material (together 'relevant material') to be contained
in a CSO application is to be provided to the serious offender. The purpose of this section
is to address the need for managing a serious offender's access to these kinds of material,
which may form part of a CSO application in relation to that serious offender, particularly
where the serious offender is in a prison or detention setting. Terrorism, child abuse
material or abhorrent violent material may form part of the evidentiary material within a
CSO application. Given that an application must be provided to the serious offender,
having access to such material within a prison setting may increase the risk of other
inmates or detainees being exposed to the material and may potentially inhibit efforts to
de-radicalise, rehabilitate or disengage the serious offender from violent extremist
ideologies or dangerous behaviours.
325. Subsection 395.32(1) provides that the section applies if the applicant gives a
copy of an application or material to the recipient under subsection 395.29(2) or (3), and
the application or material contains relevant material. Paragraph 395.32(1)(b) defines
relevant material as:
• terrorism material within the meaning of paragraph 105A.14D(1)(b) of the Criminal
Code, which mirrors the definition of 'terrorism evidence' in the Criminal Procedure
Act 1986 (NSW); or
• child abuse material within the meaning of Part 10.6; or
• abhorrent violent material within the meaning of Subdivision H of Division 474.
326. Subsection 395.32(2) provides that where the application or material contains
relevant material, the Immigration Minister may apply to the Court for an order in relation
to the manner in which the relevant material is to be dealt with.
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327. Subsection 395.32(3) sets out a non-exhaustive list of how the Court could order
that the relevant material be handled, including that the material be provided to the serious
offender's legal representative, or that it be available for inspection by the serious offender
at specified premises (rather than in a prison or detention environment).
Section 395.33 - Giving documents to serious offenders who are detained in custody
328. Section 395.33 provides for the process for complying with a requirement, under
Division 395, to give a document to a serious offender if they are in custody. In the event
that a serious offender is required to be given a document, it is taken to have been given to
the serious offender if it is given to the 'recipient', being either the legal representative of
the serious offender or the chief executive officer (however described), or their delegate,
of the prison or other facility in which the serious offender is detained.
329. Subsection 395.33(2) requires the recipient to give the document to the serious
offender as soon as reasonably practicable. Once they have done so, subsection 395.33(3)
requires the recipient to notify the Court and the person who gave the recipient the
document, in writing, that the document was given to the serious offender and the day it
was given to the serious offender. This section ensures that the serious offender has full
access to the information and documents relevant to the proceeding, and that the time
limits prescribed within Division 395 operate fairly.
Section 395.34 - When a serious offender is unable to engage a legal representative
330. Section 395.34 allows the Court to make specified orders where the serious
offender, due to circumstances beyond their control, is unable to engage a legal
representative in relation to a CSO proceeding. The Court may make an order staying
proceedings for such period, and subject to such conditions as the Court thinks fit, and
requiring the Commonwealth to bear all or part of the reasonable costs and expenses of the
serious offender's legal representation for the proceeding.
331. A CSO proceeding is defined at section 395.2 to mean a proceeding under
Subdivision C, B or D of Division 395. While an appeal of a CSO is not a CSO
proceeding (as it is a proceeding under Subdivision E), section 395.34 is available in an
appeal proceeding because paragraph 395.36(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 CSO proceedings.
332. Subsection 395.34(3) provides that regulations may prescribe matters that the
Court may, must or must not take into account in determining whether circumstances are
beyond the serious offender's control and reasonable costs and expenses of the serious
offender's legal representation for the proceedings.
333. Subsection 395.34(4) provides that the section does not limit any other power of
the Court.
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Section 395.35 - Reasons for decisions
334. Section 395.35 requires the Court to provide reasons for its decision in relation to
any CSO proceeding. 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 to the
proceedings.
335. The note at the end of section 395.35 clarifies that subsection 395.2(2) deals with
when a Court makes a CSO decision.
Section 395.36 - Right of appeal
336. Subsection 395.36(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 CSO decision
and the court of appeal has jurisdiction to hear appeals in relation to civil matters.
337. Subsection 395.36(2) establishes that an appeal is to be by way of rehearing. It
also clarifies the powers of the Court when hearing an appeal.
338. Subsection 395.36(3) ensures that appeals may be made both as of right (within
28 days after the day the CSO decision was made), or by leave of the Court, within such
further time as the court of appeal may allow.
339. Subsections 395.36(4) and 395.36(5) stipulate that the making of an appeal does
not stay the operation of a CSO, and that nothing in section 395.36 limits any other right
of appeal.
Subdivision G - Offences relating to CSSOs
Section 395.38 - Offence for contravening a CSSO
340. Section 395.38 contains offences for contravening CSSOs where the conduct
constitutes a breach of a condition or a direction specified in relation to an exemption
condition.
341. Subsection 395.38(1) provides that a person commits an offence if a CSSO is in
force in relation to that person, the CSSO is not suspended under section 395.42, and the
person engages in conduct (fault element is intention - see section 5.6 of the Criminal
Code) that contravenes a condition under the order (fault element is recklessness).
'Recklessness' is defined in section 5.4 with respect to a circumstance if he or she is aware
of a substantial risk that the circumstance exists or will exist, and having regard to the
circumstance known to the person it is unjustifiable to take the risk. The term 'engage in
conduct' is also defined in subsection 4.1(2) of the Criminal Code and includes acts and
omissions.
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342. An example of how the offence in subsection 395.38(1) may operate is as
follows: A CSSO may contain a condition which provides that the serious offender must
not communicate with a particular individual. If the serious offender communicates with
that individual, then it would be a breach of the CSSO and constitute an offence under
subsection 395.38(1) provided that the order was in force and not suspended at the time
the conduct constituting the breach occurred. Similarly, a serious offender who does not
comply with a reasonable direction that is provided by a specified authority in relation to
specific conditions imposed under the order may commit an offence against subsection
395.38(1). For example, a court could impose a condition that a serious offender not
associate with any individuals determined by an AFP Superintendent. If the AFP
Superintendent determined that the offender must not associate with Person A, then
associating with Person A would constitute a breach of the order and an offence under
subsection 395.38(1) provided that the order was in force and not suspended at the time
the conduct constituting the breach occurred.
343. Paragraph 395.38(1)(d) provides that if the condition is an exemption condition
(see section 395.15 for exemption conditions), a person will commit an offence against
subsection 395.38(1) if there is no exemption in force at the time the person engaged in the
conduct which constituted a breach. For example, a CSSO may contain a condition that
prohibits an offender from going to a particular location, such as the Sydney Central
Business District (CBD). If the Court had made that an exemption condition, then the
offender could apply to the person or persons specified in the order for an exemption to
attend the Sydney CBD at a particular time for a particular reason, such as a medical
appointment. However, if the offender did not apply to the person specified in the order
for an exemption to attend the Sydney CBD, but the offender visited that area, this would
constitute an offence under subsection 395.38(1).
344. The maximum penalty for a subsection 395.38(1) offence is 5 years'
imprisonment or 300 penalty units or both. This maximum penalty reflects the seriousness
of a breach of these conditions, and is commensurate with the penalties for breaching
similar orders in the Criminal Code, including extended supervision orders in Division
105A and control orders in Division 104. The significant term of imprisonment also is also
intended to serve as a deterrent to the commission of the offence.
345. Subsection 395.38(2) provides that a person commits an offence if they engage in
conduct (fault element is intention - see section 5.6 of the Criminal Code) that contravenes
a direction that is specified in relation to an exemption condition under a CSSO that is in
force in relation to that person (fault element is recklessness). 'Recklessness' is defined in
section 5.4 with respect to a circumstance if he or she is aware of a substantial risk that the
circumstance exists or will exist, and having regard to the circumstance known to the
person it is unjustifiable to take the risk. The term 'engage in conduct' is also defined in
subsection 4.1(2) of the Criminal Code and includes acts and omissions.
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346. An example of how the offence in subsection 395.38(2) may operate is as
follows: A CSSO may contain a condition that prohibits a serious offender from
contacting an individual as they are a national security concern. If the Court had made that
an exemption condition, then the offender could apply to the person or persons specified in
the order for an exemption to that condition. The serious offender could then apply for an
exemption to contact that person for a specific reason, if it is in relation to a serious and
appropriate matter. If the person or class of persons specified in the order granted that
exemption, but directed that the contact could only occur via use of the serious offender's
nominated phone, and the serious offender then met with them in person, then the serious
offender would have engaged in conduct which contravened the direction. That would
constitute an offence under subsection 395.38(2).
347. The maximum penalty for a subsection 395.38(2) offence is 5 years'
imprisonment or 300 penalty units or both. This maximum penalty reflects the seriousness
of a breach of these conditions, and is commensurate with the penalties for breaching
similar orders in the Criminal Code, including extended supervision orders in Division
105A and control orders in Division 104. The significant term of imprisonment also is also
intended to serve as a deterrent to the commission of the offence.
348. Subsection 395.38(3) provides that it will not be an offence to contravene a
CSSO if the person who would have otherwise committed an offence has a reasonable
excuse for the contravention. In effect, this provision operates as a defence. This is
consistent with the offence introduced in the Migration Amendment (Bridging Visa
Conditions) Act 2023. The note under this section clarifies that the defendant bears an
evidential burden in relation to the proving of the reasonable excuse, consistent with
subsection 13.3(3) of the Criminal Code. An evidential burden, in relation to a matter,
means the burden of adducing or pointing to evidence that suggests a reasonable
possibility that the matter exists or does not exist. If the person discharges that evidential
burden, the prosecution must disprove that matter beyond reasonable doubt.
Section 395.39 - Offence relating to monitoring devices
349. Subsection 395.39(1) provides that a person commits an offence if they are
required to wear a monitoring device under a CSSO that is not suspended under section
395.42, and the person engages in conduct (fault element is intention - see section 5.6 of
the Criminal Code) that results in interference with, or disruption or loss of, a function of
the monitoring device or any related monitoring equipment (fault element is recklessness).
350. 'Recklessness' is defined in section 5.4 with respect to a circumstance if he or she
is aware of a substantial risk that the circumstance exists or will exist, and having regard to
the circumstance known to the person it is unjustifiable to take the risk. The term 'engage
in conduct' is also defined in subsection 4.1(2) of the Criminal Code and includes acts and
omissions. Conduct may range from a subject failing to charge a monitoring device where
there has been adequate warning that the device requires charging, to attempting to disable
the monitoring device by administering blunt force.
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351. The maximum penalty for a subsection 395.39(1) offence is 5 years'
imprisonment or 300 penalty units or both. This maximum penalty reflects the seriousness
of the conduct, and is also intended to serve as a deterrent to the commission of the
offence. It is also commensurate with the maximum penalty that applies to an equivalent
offence for interfering with monitoring devices in the context of extended supervision
orders in subsection 105A.18B(1).
352. Subsection 395.39(2) provides that a person (the perpetrator) commits an offence
if the perpetrator knows that, or is reckless (see section 5.4 of the Criminal Code) as to
whether a CSSO is in force in relation another person (the offender), the order is not
suspended under section 395.42 (fault element is strict liability - see below), the
perpetrator knows that, or is reckless as to whether, the order requires the offender to wear
a monitoring device, and the perpetrator engages in conduct (fault element is intention -
see section 5.6 of the Criminal Code) that results in interference with, or disruption or loss
of, a function of the monitoring device or any related monitoring equipment.
353. Subsection 395.39(3) provides that strict liability, as outlined in section 6.1 of the
Criminal Code, applies to the circumstance that the CSSO was not suspended under
section 395.42 at the time of the alleged offending. Section 6.1 of the Criminal Code
provides that the application of strict liability negates the requirement to prove fault. Strict
liability is appropriate in this context because the state of mind of the perpetrator is
irrelevant as to whether the CSSO was suspended at the time they engaged in the relevant
conduct. It would still be open to the defendant to raise a defence of mistake of fact under
section 9.2 of the Criminal Code.
354. The offence in subsection 395.392 is intended to capture circumstances where the
serious offender does not themselves interfere or disrupt the monitoring device, but other
third parties have done so.
355. The maximum penalty for a subsection 395.39(2) offence is 5 years'
imprisonment or 300 penalty units or both. This maximum penalty reflects the seriousness
of the conduct, and is also intended to serve as a deterrent to the commission of the
offence. It is also commensurate with the maximum penalties that apply for an equivalent
offence for third parties interfering with monitoring devices in the context of extended
supervision orders in subsection 105A.18B(2).
356. Subsection 395.39(3) provides that it will not be an offence to contravene a
CSSO if the person who would have otherwise committed an offence has a reasonable
excuse for the contravention. In effect, this provision operates as a defence. This is
consistent with the offence introduced in the Migration Amendment (Bridging Visa
Conditions) Act 2023. The note under this section clarifies that the defendant bears an
evidential burden in relation to the proving of the reasonable excuse, consistent with
subsection 13.3(3) of the Criminal Code. An evidential burden, in relation to a matter,
means the burden of adducing or pointing to evidence that suggests a reasonable
possibility that the matter exists or does not exist. If the person discharges that evidential
burden, the prosecution must disprove that matter beyond reasonable doubt.
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Section 395.40 - Mandatory 1-year imprisonment for offences
357. Section 395.40 provides that if a person is convicted of an offence against section
395.38 or section 395.39, the court must impose a sentence of imprisonment of at least one
year. A mandatory minimum sentence is appropriate in this circumstance as this Division
applies to persons who pose an unacceptable risk of committing a serious violent or sexual
offence, and have breached conditions seeking to mitigate this risk. In this context, a
breach of an order represents a serious offence and a serious risk to the Australian
community.
358. A mandatory minimum sentence reflects the breach of a condition is a significant
matter that requires action by the court to protect the community from the risks posed by
individuals who have demonstrated through a breach of the order that they are a continued
risk to the community. The minimum period is commensurate with the punishment that
would otherwise be applied to an individual who has breached conditions of their Subclass
070 (Bridging (Removal Pending)) visa conditions (see section 76DA of the Migration
Act).
Subdivision H - Miscellaneous
Section 395.41 - Detention under the Migration Act 1958
359. Section 395.41 deals with circumstances where a serious offender may be subject
to both a CSO and detention under the Migration Act. Subsection 395.41(1) provides that
a serious offender would not be prevented from being detained under the Migration Act if
a CSO is in force in relation to the serious offender, or if a serious offender is being
detained in accordance with a CSDO. The note following this subsection illustrates that a
serious offender may be detained under the Migration Act if there is a real prospect of the
offender being removed from Australia in the reasonably foreseeable future.
360. Subsections 395.40(2) and 395.40(3) provide that a CSDO or CSSO,
respectively, in relation to a serious offender would be suspended during the period for
which the serious offender is detained under the Migration Act 1958.
361. Subsection 395.40(4) provides that a CSO would continue to be in force during
the period the order is suspended. This means that a serious offender who is subject to the
order whilst being detained under the Migration Act would remain eligible for a further
order under section 395.6.
362. Subsection 395.40 (5) provides that a serious offender is not required to comply
with any condition in a CSSO while the CSSO is suspended. Complying with the
conditions imposed by a CSSO may be difficult, if not impossible, for a serious offender
who is detained under the Migration Act. It may also be difficult for law enforcement
agencies to monitor a serious offender's compliance with those conditions whilst the
serious offender is detained under the Migration Act. The suspension of the CSO (and any
conditions under a CSSO) would end as soon as the period of detention under the
Migration Act ends.
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Section 395.42 - Effect of prison detention on CSO
363. Section 395.42 deals with the effect of prison detention on CSOs. This is intended
to cover situations where, for example, a serious offender who is subject to a CSO is
convicted of and serving a sentence for another offence while the order is in force, or
where a serious offender is charged with another offence and held on remand for a period
of time while the order is in force.
364. Subsection 395.42(1) provides that a CSDO in relation to a serious offender
would be suspended during the period that the serious offender is detained in custody in a
prison, other than as a result of a CSDO. Subsection 395.42(2) similarly provides that a
CSSO in relation to a serious offender would be suspended during the period that the
serious offender is detained in custody in a prison.
365. Subsection 395.42(3) provides that the CSO would continue to be in force during
the period the order is suspended. This means that a serious offender who is subject to the
order whilst being detained in custody in a prison would remain eligible for a further order
under section 395.6.
366. Subsection 395.42(4) provides that a serious offender is not required to comply
with any condition in a CSSO while the CSSO is suspended. Complying with the
conditions imposed by a CSSO may be difficult, if not impossible, for a serious offender
who is detained in custody in a prison. It may also be difficult for law enforcement
agencies to monitor a serious offender's compliance with those conditions whilst the
serious offender is detained in custody in a prison. The suspension of the CSO (and any
conditions under a CSSO) would end as soon as the period of detention ends.
367. Any period of suspension will not affect the expiry date of the CSO. For example,
if a serious offender was subject to a two-year CSSO which expired on 1 June 2021, but
spent four months in custody on remand from July-October 2019, and then three months
in prison serving a sentence from November 2020-January 2021, the order would be
suspended for that seven-month period but would nonetheless continue to expire on 1 June
2021.
368. If a serious offender is subject to a period of detention which overlaps with the
expiry date for the CSO, the order would expire as normal and the Immigration Minister
could apply for a further CSO, which would come into effect after the serious offender's
period of detention (noting subsection 395.6(3) would preserve the serious offender's
eligibility for a CSO). If the CSO does not expire during the serious offender's period of
detention, the requirements of the order would be enlivened upon their release from
custody (or in the case of a CSDO, at the end of their custodial sentence or period on
remand).
369. The periodic review requirements under section 395.23 may be affected if the
CSO is due to be reviewed while it is suspended under section 395.42.
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Section 395.43 - Immigration Minister may direct serious offenders to be assessed
370. Section 395.43 allows the Immigration Minister to direct serious offenders to
attend expert assessments for certain purposes. This supplements the existing court-
appointed expert provisions in section 395.9.
371. Subsection 395.43(1) provides that the Immigration Minister may direct serious
offenders who are eligible for a CSO, or presently subject to a CSO, to be subject to an
expert assessment. This provides the Immigration Minister with the flexibility to obtain a
more up-to-date assessment of the serious offender's level of risk, both before a CSO has
been applied for or while a CSO is in force (compared to court-appointed experts under
section 395.9 of the Criminal Code, which may only occur after a CSO has been applied
for).
372. Subsection 395.43(2) provides the Immigration Minister may appoint the expert
to conduct the assessment and provide a report for the purposes of determining whether to
make an application for a CSO, or an application for a review or variation of a CSO. As a
matter of practice, the Immigration Minister would appoint the expert to conduct the
assessment and provide the report prior to making an application for a CSO so that the
findings in the report can help inform his or her decision on whether to proceed with the
application. In addition, expert reports would also be of considerable assistance in
determining the types of measures that may or may not be effective in mitigating a serious
offender's individual risk.
373. Subsection 395.43(3) provides that the expert who is appointed by the
Immigration Minister must conduct an assessment of the risk of the serious offender
committing a serious violent or sexual offence, and provide that report to the Immigration
Minister. The serious offender who is the subject of the expert assessment must receive a
copy of the expert report where it is subsequently relied on in an application for an order,
or review of an order (subject to any information protections that apply in respect of the
application).
374. Subsection 395.43(4) provides that the serious offender must attend the
assessment, which may occur over multiple sessions. This will assist the Immigration
Minister to obtain a complete picture of the serious offender's risk, which would then
inform his or her decision as to whether or not to proceed with an application for a CSO,
or review of a CSO. This also ensures that the utility of this provision is not undermined.
375. Subsection 395.43(5) is about the admissibility of information provided by the
serious offender during a relevant expert's assessment, and mirrors the text in
subsection 395.9(7).
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376. Subsection 395.9(6) provides that the Immigration Minister must ensure that the
effect of subsections 395.43(4), (5) and (8) are explained to the serious offender.
Respectively, these subsections relate to the requirement of the serious offender to attend
an assessment, the limits on the use of information provided at that assessment, and the
use of that information by the Immigration Minister in determining whether to apply for a
CSO in relation to the serious offender and the Court in making or varying a CSO or in
reviewing a CSO.
377. Subsection 395.43(7) provides for the matters which the expert's report may
include. These matters are non-exhaustive to allow the relevant expert to consider all
factors that are relevant to the serious offender's circumstances.
378. Subsection 395.43(8) clarifies the circumstances in which expert assessments and
reports may be taken into account. Subsection 395.43(8) provides that an expert
assessment of a serious offender's risk of committing a serious violent or sexual offence,
along with the corresponding report, may be taken into account by the Immigration
Minister in deciding whether to apply for, vary, or review a CSO, and the Court in making
or varying a CSO, or reviewing a CSO.
Section 395.44 - Sharing information
379. The purpose of section 395.44 is to facilitate information sharing about a serious
offender between the Immigration Minister, the Immigration Minister's department and
relevant third-party agencies, for the purpose of Division 395. This is because the
Immigration Minister 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 CSO in relation to a serious offender. Section 395.44 will facilitate the
sharing of necessary and relevant information about a serious offender to ensure the
Immigration Minister can make an informed decision.
380. Subsection 395.44(1) allows the Immigration Minister to request a person to give
them information that the Immigration Minister reasonably believes to be relevant to the
administration or execution of Division 395. The Immigration Minister may only request
information from a person prescribed by the regulations.
381. Subsection 395.44(2) specifies that the request for information under
subsection 395.44(1) need not be in writing.
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382. Subsection 395.44(3) provides that despite any Commonwealth, State or Territory
law, persons prescribed in the regulations may provide the information to the Immigration
Minister under subsection 395.44(1). The intent of this subsection 395.44(3) is to avoid
any doubt that third parties (such as Commonwealth, State or Territory officials) can share
information with the Commonwealth, notwithstanding other laws which may limit or
prohibit disclosure. This will facilitate the sharing of necessary and relevant information
about a serious offender to ensure the Immigration Minister can make informed decisions
about whether to make an application for a CSO in relation to a serious offender, noting
that State and Territory agencies (such as corrective services agencies) would be likely to
hold relevant information.
383. Subsection 395.44(4) allows the Immigration Minister to disclose information to
a person prescribed by the regulations in the circumstances set out in that subsection.
Subsection 395.44(5) ensures that subsection 395.44(4) applies despite any other law of
the Commonwealth, a State or Territory (whether written or unwritten).
Section 395.45 - Sharing information relating to CSSOs
384. Section 395.45 facilitates the sharing of information about a serious offender and
their compliance with their electronic monitoring conditions (if any) between the AFP and
third parties, provided it is authorised by an arrangement under subsection 395.48(1).
385. Subsection 395.45(1) provides that an AFP member may disclose information
(including personal information) to a person employed or engaged by a body covered by
an arrangement under subsection 395.48(1) for the purpose of facilitating the performance
of any functions or the exercise of any powers in relation to CSSOs. This is intended to
ensure that information can be appropriately shared in instances where the AFP has
contracted a third party (such as a State corrections agency) to undertake electronic
monitoring in relation to a serious offender who is subject to an electronic monitoring
condition.
386. Subsection 395.45(2) provides that the person employed or engaged by a body
covered by the arrangement under subsection 395.48(1) may disclose information
(including personal information) to another person if the person under the arrangement
reasonably believes that the disclosure is authorised by the arrangement.
387. Subsection 395.45(3) provides that section 395.45 applies despite any other law
of the Commonwealth, a State or a Territory (whether written or unwritten). The purpose
of this provision is to make clear that State and Territory officials can share information
with the Commonwealth, notwithstanding other laws which may limit or prohibit
disclosure of that information.
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Section 395.46 - Delegation by the Immigration Minister
388. Section 395.46 provides for the Immigration Minister to delegate, in writing, to
the Secretary of the department administered by the Immigration Minister or another
relevant employee of the department who performs duties in connection with the
administration or execution of Division 395, their powers and functions in requesting or
disclosing information under section 395.44.
389. The section restricts delegation of the Immigration Minister's powers to
employees who perform duties in connection with Division 395. Only a limited number of
people in the department will perform duties in connection with an application for a CSO
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 serious offender.
Section 395.47 - Arrangement with States and Territories
390. Serious offenders subject to a CSDO may be housed in State and Territory prison
facilities. Subsection 395.47(1) allows the Immigration Minister to make mutual
arrangements with any State or Territory to facilitate this.
391. Subsection 395.47(2) provides the chief executive officer (however described) of
the prison with authority to detain the serious offender within the prison for the period of a
CSDO.
Section 395.48 - Arrangements by AFP Commissioner for functions and powers relating
to supervision orders
392. Section 395.48 allows for formal arrangements to be made between the AFP
Commissioner and relevant third parties (for example, a State, Territory or any other body
such as a State corrections agency) to authorise the sharing of information relating to
CSSOs under section 395.44.
393. Subsection 395.48(1) provides that the AFP Commissioner may make
arrangements with a State or Territory, or any other body, for the performance of any
functions or the exercise of any powers relating to CSSOs.
394. Subsection 395.48(2) provides that for the purposes of section 395.45, the
arrangement may authorise a person employed or engaged by a body covered by the
arrangement to disclose information (including personal information). This ensures there
is an appropriate flow of information between the parties to the arrangement.
395. Subsection 395.481(3) allows the AFP Commissioner to delegate their powers
under subsection 395.48(1) to another senior AFP member. This ensures that the AFP has
the flexibility to enter into its own arrangements for the purposes of performing its
functions or the exercise of powers relating to CSSOs.
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Section 395.49 - Annual report
396. Subsection 395.49(1) requires the Immigration Minister 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.
397. Subsection 395.49(2) requires the report to include the information set out in that
subsection.
398. Subsection 395.49(3) requires the Immigration Minister 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 395.50 - Effect of CSDOs on bail or parole laws
399. Subsection 395.50(1) provides that a serious offender is not eligible to be released
on bail or parole while subject to a CSDO.
400. Subsection 395.50(2) clarifies that if a serious offender is charged with an offence
while the CSDO is in force, they are not prevented from applying to be released on bail
before the CSDO ceases to be in force. The note following this subsection confirms the
interaction with subsection (1), being that the person cannot be released on bail until the
CSDO ceases to be in force
401. Subsection 395.50 (3) explains that section 395.50 is intended to apply despite
any law of the Commonwealth, a State or a Territory.
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Surveillance Devices Act 2004
Item 6 After paragraph 3(aaf)
402. Item 6 amends section 3 to apply to the CSO scheme and set out the main
purposes of the Act in relation to that scheme, including establishing procedures for law
enforcement officers to:
• obtain certain warrants in cases where a CSSO is in force and the use of the device or
access would be likely to substantially assist in achieving a Part 9.10 object or
determining whether CSSO has been complied with; and
•
• obtain tracking device authorisations for the use of tracking devices in cases where a
CSSO is in force in relation to a person, and the use of a tracking device is to obtain
information relating to the person for achieving a Part 9.10 object or determining
whether CSSO has been complied with.
Item 7 At the end of section 4
403. Item 7 expands section 4 of the Act to apply to CSSOs. Specifically, Item 7 adds
subsections 4(7) and (8) to clarify that a warrant relating to a CSSO may be issued under
the Act for the installation, use, maintenance or retrieval of a surveillance device, or for
access to data held in a computer, if:
• consideration is being given, will be given, or is likely to be given, as to whether to
apply for a Part 9.10 order, and the use of the device or the access to the data would
be likely to assist in determining whether to apply for the order, or
• a CSSO order is in force, and the use of the device or the access to the data would
likely to substantially assist in achieving a part 9.10 object or whether a CSSO has
been, or is being, complied with.
404. The threshold 'likely to assist' is appropriately lower than the threshold 'likely to
substantially assist' which applies in warrants where a CSSO is in force and is used for an
investigatory purpose (i.e. determining whether an order is being complied with). This is
because:
• there will be a lower level of certainty as to how valuable the information obtained
would be at the early stages of information gathering to put forward to the Minister to
support a determination as to whether or not to make a CSSO application, and
• the level of risk the offender will pose upon release is difficult to establish while an
application is being considered. It is vital that the offender's level of risk to the
community is comprehensively understood to ensure that the type of order (if any)
that is ultimately applied for by the Immigration Minister is appropriately adapted and
proportionate to the risk posed by the offender if released into the community.
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405. Item 7 also add subsection 4(8) to clarify that a tracking device authorisation may
be issued under the Act where a Part 9.10 supervisory order is in force, and the use of the
device or the access to the data would be likely to substantially assist in achieving a Part
9.10 object or determining compliance with a CSO.
Item 8 Subsection 6(1)
Item 9 Subsection 6(1) (paragraph (oa) of the definition of relevant proceeding)
Item 10 Subsection 6(1)
Item 11 Subsection 6(1) (definition of unsworn application)
406. Items 8-11 amend subsection 6(1) to insert several definitions that are relevant to
the amendments proposed to the Act, as well as
407. The definition of 'community safety detention order' is added, and has the same
meaning as in Part 9.10 of the Criminal Code.
408. The definition of 'community safety supervision order' is added, and has the
same meaning as in Part 9.10 of the Criminal Code.
409. The definition of 'Immigration Minister' is added, and means the Minister
administering the Migration Act 1958.
410. The definition of 'Part 9.10 information' is added, and has the meaning given to it
by subsection 50A(6).
411. The definition of 'Part 9.10 object' is added, and means the protection of the
community from the unacceptable risk of a serious offender committing a serious violent
or sexual offence.
412. The definition of 'Part 9.10 order' is added, and means a community safety
detention order or a community safety supervision order.
413. The definition of 'Part 9.10 warrant' is added, and means a surveillance device
warrant or computer access warrant that is used to determine whether to apply for a Part
9.10 order or issued in relation to a CSSO that is or was in force.
414. Items 3-5 also amend paragraph (oa) under the definition of relevant proceeding,
to include Division 395 (community safety orders) proceedings.
415. The definition of 'serious offender' is added and has the same meaning as in Part
9.10 of the Criminal Code.
416. The definition of 'serious violent or sexual offence' has the same meaning as in
Part 9.10 of the Criminal Code.
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417. The definition of 'succeeding community safety supervision order' is added, and
has the meaning given by section 6F.
418. The definition of 'unsworn application' is amended to include '(13A)' after
'27A(13)'.
Item 12 Sections 6E and 6F
419. Item 12 inserts sections 6E and 6F to include CSSOs. Specifically, Item 12 adds
section 6E to allow an application for a Part 9.10 warrant to be made and a warrant to be
issued prior to the Part 9.10 supervisory order having come into force under Division 395
of the Criminal Code. This is necessary to provide an opportunity for devices to be
covertly installed and to ensure they can be ready for use as soon as it is authorised by the
Part 9.10 warrant.
420. Item 12 inserts section 6F to provide that a successive community safety
supervision order made in relation to the same person is termed a 'succeeding community
safety supervision order'. Introducing the concept of a succeeding community safety
supervision order reflects that under Division 395 of the Criminal Code, there is no limit
on the number of CSSOs that can be made in relation to an offender. The definition of
succeeding community safety supervision order is used throughout the provisions to
ensure that Part 9.10 warrants may be issued or given, and information obtained via the
use of those powers may be dealt with, in connection with subsequent equivalent orders,
rather than being limited to the specific order that is in force at a given point in time.
Item 13 After subsection 14(3C)
421. Item 13 amends section 14 to insert new subsections 14(3D) and 14(3E).
Specifically, Item 13 provides that a law enforcement officer may apply under subsection
14(3D) for the issuance of a surveillance device warrant if the officer suspects on
reasonable grounds that the use of the device to obtain information would be likely to
assist in determining whether to make a CSO application.
422. The underlying purpose of a warrant sought to determine whether to apply for a
CSO in relation to an offender is to ensure the Immigration Minister is provided
contemporary evidence to assist in understanding the offender's level of risk, which will
inform the decision whether or not to apply for a CSO.
423. Paragraph 14(3D)(a) provides that the law enforcement officer may only apply
under subsection 14(3D) if it is in relation to a person who is eligible for a CSO. This
confines the use of the device to information gathering with regard to the CSO scheme.
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424. Paragraph 14(3D)(b) provides that the officer must suspect on reasonable grounds
that there is an appreciable risk of the person committing a serious violent or sexual
offence. The information which may inform a suspicion on reasonable grounds that there
is an appreciable risk of the person committing a serious violent or sexual offence will
depend on the specific circumstances. It may be that the officer could rely on the
established propensity of the offender to engage in certain types of conduct, by reference
to the earlier conviction and to any other relevant information. This threshold is
appropriately connected to the risk posed by the particular offender, rather than allowing
the warrant to be available regardless of whether there is any suspicion about the
apprehended conduct of a particular individual.
425. Paragraph 14(3D)(c) requires that consideration is being given, will be given, or
is likely to be given, by the Immigration Minister (or a person on behalf of the
Immigration Minister), as to whether to apply for a CSO in relation to the person. This
ensures that a warrant to start an information gathering process cannot be sought in respect
of an offender who will not be considered for a CSO.
426. Paragraph 14(3D)(d) provides that the officer must suspect on reasonable grounds
that the use of the surveillance device to obtain information relating to the person would
be likely to assist in determining whether to apply for a CSO. The threshold 'likely to
assist' is appropriately lower than the threshold 'substantially assist' which applies in
warrants where a CSO is already in force and is used for an investigatory purpose (i.e.
determining whether an order is being complied with). This is because:
• there will be a lower level of certainty as to how valuable the information
obtained would be at the early stages of information gathering to put forward to
the Immigration Minister to support a determination as to whether or not to
make a CSO application, and
• there is very limited evidence as to the level of risk of the offender at the
beginning of the information gathering process. It is vital that the offender's
level of risk to the community is comprehensively understood to ensure that the
type of order (if any) that is ultimately applied for by the Minister for
Immigration is appropriately adapted and proportionate to the risk posed by the
offender if released into the community.
427. Item 13 introduces new subsection 14(3E) to establish the application process for
a warrant in relation to a CSSO. A law enforcement officer (or person on their behalf) may
apply for the issue of a warrant if a CSSO is in force and the officer suspects, on
reasonable grounds, that the use of a surveillance device to obtain information relating to
the subject of the order would be likely to substantially assist in achieving a Part 9.10
object or determining compliance with a CSSO.
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Item 14 Subsection 14(4)
Item 15 Subsection 14(6)(a)
428. Item 14 makes a minor amendment to subsection 14(4) to refer to new
subsections 14(3C), (3D) and (3E) which was inserted by Item 13, and a minor
amendment to paragraph 14(6)(a) to include 'or (3E)(b)' after "paragraph (3C)(b)".
Item 16 Subsection 16(1)(bc)
Item 17 Subsection 16(1) (at the end of the note)
429. Items 16 and 17 amend subsection 16(1) to apply to CSSOs, and continue the
subsection's application to control orders and PSOs. Specifically, Items 16 and 17 amend
subsection 16(1) to reflect that a warrant may be issued both to determine whether to apply
for a CSO or when a Part 9.10 supervisory order is in force in relation to a person.
430. Subsection 16(1) establishes the factors that an eligible Judge or nominated AAT
member must be satisfied of when determining whether to issue a surveillance device
warrant.
431. Item 16 inserts paragraphs 16(1)(bd) and (be) to make subsection 16(1) apply to
CSSOs. New paragraph 16(1)(bd) provides that, where a warrant is sought to determine
whether to apply for a Part 9.10, an eligible Judge or AAT member may issue a
surveillance device warrant only if satisfied that the conditions in paragraphs 14(3D)(b)
and (d) are met, and that there are reasonable grounds for the suspicions founding the
application for the warrant.
432. Item 17 replaces paragraph 16(1)(be) to provide that where a warrant is sought in
relation to a CSSO that is in force in relation to a person, an eligible Judge or AAT
member may issue a surveillance device warrant only if the order is in force in relation to
the person, and if satisfied that there are reasonable grounds for the suspicion founding the
application for the warrant.
Item 18 After subsection 16(3)
Item 19 At the end of section 16
433. Items 18 and 19 amend section 16 to apply to CSSOs, and continue the section's
application to control orders and PSOs. Specifically, Item 18 inserts paragraph (3A) after
subsection 16(3) to provide that when determining whether a surveillance device warrant
sought to determine whether to apply for a Part 9.10 order should be issued, the eligible
Judge or AAT member must have regard to:
• the likely value of the information sought to be obtained in determining whether to
apply for a Part 9.10 order, and
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• any previous application for a surveillance device warrant sought or issued to
determine whether to apply for a Part 9.10 order in relation to the person.
434. The underlying purpose of a warrant sought to determine whether to apply for a
Part 9.10 order in relation to a person is to ensure the Immigration Minister is provided
contemporary evidence to assist in understanding the offender's level of risk, which will
inform the decision whether or not to apply for a Part 9.10 order.
435. With respect to surveillance device warrants sought to determine whether to
apply for a Part 9.10 order, there is no requirement, unlike for warrants sought in a case
where a CSSO is in force in relation to a person, for a Judge or AAT member to consider
whether the use of the surveillance device in accordance with the warrant would be the
means of obtaining the evidence or information sought to be obtained that is likely to have
the least interference with any person's privacy. This is appropriate and consistent with the
threshold and intended outcome of this measure - that is to obtain information that will
'likely assist' in determining whether or not a CSO application should be made. Further,
any privacy considerations are balanced appropriately as the Judge or AAT member has
discretion to consider the extent to which the privacy of any person is likely to be affected.
436. Item 19 extends at new subsection 16(5) the list of matters the eligible Judge or
AAT member must have regard to in addition to subsection 16(2) when determining
whether to issue a surveillance device warrant sought in relation to an offender subject to
CSSO, including:
• the likely value of the information sought to be obtained in achieving a Part 9.10
object or determining compliance with the relevant order
• whether the use of the surveillance device in accordance with the warrant would be
the means of obtaining the evidence or information sought to be obtained that is likely
to have the least interference with any person's privacy
• the possibility that the person has contravened, is contravening, or will contravene, the
order or a succeeding Part 9.10 supervisory order, and
• any previous surveillance device warrant sought or issued on the basis of a Part 9.10
supervisory order that is or was in force in relation to the person.
437. The purpose of these additional matters is to ensure the eligible Judge or AAT
member expressly considers the purpose of the warrant.
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Item 20 Paragraph 17(1)(a)
Item 21 After subsection 17(1AB)
Item 22 After subsection 17(1B)
438. Section 17 sets the content requirements for a surveillance device warrant, which
includes amongst other things, the name of the applicant and the kinds of surveillance
devices authorised to be used under the warrant. This requirement ensures that the warrant
clearly states its scope. If the surveillance device warrant is sought for determining
whether to make a CSO application, it is not appropriate to list the type of CSO intended
to be sought as it will be too early in the information gathering process to determine which
CSO may be sought.
439. Item 21 inserts new subsection 17(1AD) to ensure, for the avoidance of doubt,
that a warrant issued on the basis that a CSSO is in force remains in force for the period
mentioned in paragraph (1A)(a) even if the order ceases to be in force, provided that the
order is replaced by a succeeding CSSO.
440. Item 22 inserts a note that if there is no succeeding CSSO, the warrant must be
revoked.
Item 23 Subsection 19(4)
441. Item 23 is a consequential amendment to subsection 19(4) to reflect the
amendment to subsection 16(2) and subsections 16(3) and (4). Item 23 amends subsection
19(4) to update references to the revised subsection numbers in section 16.
Item 24 Subsection 20(2)
442. Item 24 is a consequential amendment to subsection 20(2) to reflect the
amendment to subsections 21(2) to (3D). Item 19 amends subsection 20(2) to update
references to revised subsection numbers in section 21.
Item 25 After paragraph 21(2)(c)
443. Item 25 amends paragraph 21(2)(c) to clarify that when a chief officer is obliged
to consider whether to revoke a surveillance device warrant, in relation to a warrant that
has been sought by or on behalf a law enforcement officer, the chief officer may not
revoke the warrant under this section if it was issued to determine whether to apply for a
Part 9.10 order. This is to ensure relevant information can continue to be gathered prior to
the determination of the application. This aligns with the warrant's purpose of obtaining
the most contemporary, relevant and admissible form of evidence to support the Court's
consideration of the Immigration Minister's application.
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Item 26 Subsection 21(2)
444. Item 26 amends paragraph 21(2)(c) to include subsection (3A) as a provision that
the relevant chief officer's determination is subject to when they may be obligated to
revoke a surveillance device warrant and taking steps necessary to ensure that the use of
the surveillance device authorised by the warrant is discontinued. This is to avoid doubt,
as outlined in items 24A and 25-27 that the chief officer must consider, prior to revoking a
surveillance device warrant under 21(2), whether the warrant was sought on the basis of
determining whether to apply for a CSO.
Item 27 After subsection 21(3)
Item 28 Subsection 21(5)
Item 29 At the end of section 21
445. Items 27-29 amend section 21. Specifically, Item 27 clarifies that the chief
officer's obligation to revoke a warrant under subsection 21(2) will not extend to apply to
warrants sought on the basis of determining whether to apply for a CSO. This is to ensure
relevant information can continue to be gathered prior to the determination of the
application. This aligns with the warrant's purpose of obtaining the most contemporary,
relevant and admissible form of evidence to support the Court's consideration of the
Immigration Minister's application.
446. Item 28 amends subsection 21(5) to include subsection (6) and new subsection
(7) to ensure that the law enforcement officer's considerations on whether to inform the
chief officer of the law enforcement agency are subject to subsections (6) and (7).
447. Item 29 inserts new subsection 21(7) which ensures that the new warrants in
relation to CSSOs are included, where the law enforcement officer to whom the warrant is
issued, or who is primarily responsible for executing the warrant, is required to
immediately notify the chief officer of a law enforcement agency to which the officer
belongs or is seconded. This amendment provides for circumstances where the warrant
was sought on the basis of a CSSO being in force--where the CSSO (or any succeeding
community safety supervision order) is no longer in force.
448. The person will be in many cases the officer to whom the warrant was issued
under section 17 and who made the application under existing section 14. However, this
may not always be the case as section 14 enables a person to apply for a warrant on behalf
of the law enforcement officer. There may also be staffing and organisational changes
during the period the warrant is in place. Item 29 recognises that there may be multiple
people working on the execution of a particular warrant, by placing the obligation on the
person deemed primarily responsible. This position has not been legislated because
agencies frequently structure investigations differently.
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Item 30 After subsection 27A(5A)
Item 31 After subsection 27A(6)
Item 32 Subsection 27A(7)
Item 33 After subsection 27A(13)
Item 34 Subsection 27A(14)
Item 35 Subsection 27A(15)
449. Items 30-35 amend section 27A to apply to CSOs, and continue the section's
application to control orders and PSOs.
450. Specifically, Items 30 amends section 27A to include new subsection (5B), which
allows a law enforcement officer to apply for a computer access warrant if it would assist
in determining whether to apply for a CSO. Item 31 provides that a law enforcement
officer may apply under subsection 27(5B) for the issuance of a computer access warrant
if the officer suspects on reasonable grounds that the access to data would be likely to
assist in determining whether to make a CSO application.
451. The underlying purpose of a warrant sought to determine whether to apply for a
CSO in relation to a person is to ensure the Immigration Minister is able to make a fully
informed decision as whether to apply for a CSO. The availability of a warrant in this
context will broaden the information available to the Immigration Minister to enable a
more comprehensive understanding of the offender's level of risk of committing a serious
Part 9.10 offence for the ultimate purpose of protecting the community.
452. The access to data authorised by this warrant would be in relation to a person who
is a non-citizen serious offender. As a safeguard there are a number of additional elements
the Judge or AAT member must expressly consider in relation to the purpose.
453. Paragraph 27A(5B)(a) provides that the law enforcement officer may only apply
under subsection 27(5B) if it is in relation to a person who is eligible for a CSO. This
confines the access to information gathering with regard to the CSO scheme.
454. Paragraph 27A(5B)(b) provides that the officer must suspect on reasonable
grounds that there is an appreciable risk of the person committing a serious Part 9.10
offence. The information which may inform a suspicion on reasonable grounds that there
is an appreciable risk of the person committing a serious Part 9.10 offence will depend on
the specific circumstances. It may be that the officer could rely on the established
propensity of the offender to engage in certain types of conduct, by reference to the earlier
conviction and to any other relevant information. This threshold is appropriately
connected to the risk posed by the particular offender, rather than allowing the warrant to
be available regardless of whether there is any suspicion about the apprehended conduct of
a particular individual.
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455. Paragraph 27A(5A)(c) requires that consideration is being given, will be given, or
is likely to be given, by the Immigration Minister (or a person on behalf of the
Immigration Minister), as to whether to apply for a CSO in relation to the person. This
ensures that a warrant to start an information gathering process cannot be sought in respect
of an offender who will not be considered for a CSO.
456. Paragraph 27A(5A)(d) provides that the officer must suspect on reasonable
grounds that the data held in the computer would likely assist in determining whether a
CSO application should be made. The threshold 'likely to assist' is appropriately lower
than the threshold 'substantially assist' which applies in warrants where a CSO is already
in force and is used for an investigatory purpose (i.e. determining whether an order is
being complied with). This is because:
• there will be a lower level of certainty as to how valuable the information obtained
would be at the early stages of information gathering to put forward to the Minister to
support a determination as to whether or not to make a CSO application, and
• there is very limited evidence as to the level of risk of the offender at the beginning of
the information gathering process. It is vital that the offender's level of risk to the
community is comprehensively understood to ensure that the type of order (if any)
that is ultimately applied for by the Immigration Minister is appropriately adapted and
proportionate to the risk posed by the offender if released into the community.
457. Further, Item 31 amends section 27A by including subsection (6A), which
requires that, where a warrant is sought in relation to a CSSO, a law enforcement officer
(or another person on the officer's behalf) may apply for computer access where:
• the order is in force in relation to a person, and
• the officer suspects on reasonable grounds that access to data held in a computer to
obtain information relating to the person would be likely to substantially assist in
achieving a Part 9.10 object or determining whether the CSSO, or any succeeding
CSSO, has been, or is being, complied with.
458. The language 'law enforcement officer, or another person on his or her behalf'
has been used to allow support staff engaged in the usual course of an investigation to
assist or provide services. They are not specified in order to reflect that arrangements may
differ between agencies.
459. Item 32 amends subsection 27A(7) to include new subdivisions (5B), (6) and
(6A) to clarify that applications under those subsections (applications for warrants in
relation to the new CSO scheme) may be made to an eligible judge or to a nominated AAT
member.
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460. Item 33 includes new subsection 27A(13A) provides for applications for
computer access warrants in relation to circumstances where the officer suspects that
access to the data would be likely to substantially assist in achieving a Part 9.10 object or
determining compliance with a CSSO, be made before an affidavit is prepared or sworn in
some circumstances. In those cases, the applicant must send a duly sworn affidavit to a
Judge or AAT member no later than 72 hours after the making of the application. This
enables an application to be made in circumstances where immediate access is necessary.
461. Computer access warrants are sought for access to data held in the target
computer. The definition of target computer is set out in subsection 27A(15). The concept
of the 'target computer' is the same as in section 25A of the ASIO Act. The target
computer may be either a particular computer, a computer on a particular premises, or a
computer associated with, or used or likely to be used by a person. The computer does not
need to be owned by the suspect. For example, it might be a computer in the suspect's
house that he or she uses but is not owned by the suspect.
462. The definition of 'target computer' should be read in conjunction with the
definition of 'computer' in the SD Act. While an application for a warrant must identify a
target computer, this does not prevent access to data associated with the target computer
on another computer (section 27E). The concept of the target computer is intended to
ensure that if an individual has more than one relevant computer, only one warrant will be
necessary. For example, there may be multiple computers on the premises and it may only
be discovered upon entering that a particular computer is not connected to the anticipated
computer system. With the variety of computers and electronic devices now commonly
used, it is highly probable that a person may store data on a number of computers (for
example, a laptop, a phone and a tablet).
463. Item 34 amends subsection 27A(14) to insert subsection (13A) to ensure that the
requirement for the applicant to send a duly sworn affidavit to a Judge or AAT member no
later than 72 hours after the making of an application applies to applications in relation to
the CSO scheme.
464. Item 35 amends subsection 27A(15) to insert subsections (5B), (6) and (6A) to
include that the definition of 'target computer' relates to the new applications added in
relation to the CSO scheme.
Item 36 After paragraph 27C(1)(da)
Item 37 After paragraph 27C(1)(e)
Item 38 Subsection 27C(1) (at the end of the note) || Items 34 - 36 Section 27C
465. Items 36 to 38 amend subsection 27C to apply to CSOs. Specifically, Items 36 to
38 amend subsection 27C(1) to provide for the conditions under which an eligible Judge
or nominated AAT member may issue a computer access warrant. Items 31 to 32 reflect
the amendments made in Items 23-24, which ensure that a law enforcement officer may
only apply for a computer access warrant where certain conditions are met.
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466. Item 36 amends subsection 27C(1) to require, in the case of a computer access
warrant sought to determine whether to apply for a CSO, the person must be a serious
offender, and consideration is being given, will be given, or is likely to be given, as to
whether to apply for a CSO in relation to the person and the issuing authority must be
satisfied:
• the officer suspects on reasonable grounds that the person poses appreciable risk of
committing a serious violent or sexual offence, and
• the officer suspects on reasonable grounds that access to data held in a computer (the
target computer) to obtain information relating to the person would be likely to assist
in determining whether to make the application.
467. Items 37 requires, in the case of a computer access warrant sought in relation to a
CSSO that is in force in relation to a person:
• the order must be in force in relation to a person (with respect to section 6E), and
• the issuing authority must be satisfied the officer suspects on reasonable grounds that
access to data held in a computer (the target computer) to obtain information relating
to the person would be likely to substantially assist in achieving a Part 9.10 object or
determining whether the community safety supervision order, or any succeeding
community safety supervision order, has been, or is being, complied with.
468. Item 38 amends subsection 27C(1), to add, at the end of the note, 'For community
safety supervision orders that have been made but not come into force, see section 6E'.
Item 39 At the end of section 27C
469. Items 39 amends section 27C to apply to CSOs, and continue the section's
application to control orders and PSOs. Specifically, Item 39 inserts a new subsection
27C(5) to ensure an eligible Judge or AAT member must have regard to:
• the likely value of the information sought to be obtained in determining whether to
apply for a CSO, and
• any previous application for a computer access warrant sought or issued to determine
whether to apply for a CSO in relation to the person.
470. The underlying purpose of a warrant sought to determine whether to apply for a
CSO in relation to a person is to ensure the Immigration Minister is provided
contemporary evidence to assist in understanding the offender's level of risk, which will
inform the decision whether or not to apply for a CSO.
471. The access to data authorised by this warrant is likely to be more contemporary,
relevant and in admissible form, as compared to other types of information. As a safeguard
there are a number of additional elements the Judge or AAT member must expressly
consider in relation to the purpose.
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472. With respect to computer access warrants sought to determine whether to apply
for a CSO, there is no requirement, unlike for warrants sought in a case where a Part 9.10
supervisory order is in force in relation to a person, for a Judge or AAT member to
consider whether the access to data in accordance with the warrant would be the means of
obtaining the evidence or information sought to be obtained that is likely to have the least
interference with any person's privacy. This is appropriate and consistent with the
threshold and intended outcome of this measure - that is to obtain information that will
'likely assist' in determining whether or not a CSO application should be made. Further,
any privacy considerations are balanced appropriately as the Judge or AAT member has
discretion to consider the extent to which the privacy of any person is likely to be affected.
473. Item 39 also inserts new subsection 27C(6) to extend the list of matters the
eligible Judge or AAT member must have regard to at section 27C when determining
whether to issue a computer access warrant sought in relation to an offender subject to
community safety supervision order, including:
• subparagraphs (6)(a)(i) and (ii), the likely value of the information sought to be
obtained in achieving a Part 9.10 object or determining compliance with the relevant
order
• paragraph (6)(b), whether the access to data in accordance with the warrant would be
the means of obtaining the evidence or information sought to be obtained that is likely
to have the least interference with any person's privacy
• paragraph (6)(c) the possibility that the person has committed, is committing, or will
commit, a serious violent or sexual offence
• paragraph (6)(d), the possibility that the person has contravened, is contravening, or
will contravene, the order or a succeeding community supervision order, and
• paragraph (6)(e), any previous computer access warrant sought or issued on the basis
of a community safety supervision order that is or was in force in relation to the
person.
474. The purpose of these additional matters is to ensure the eligible Judge or AAT
member expressly considers the purpose of the warrant.
Item 40 Paragraph 27D(1)(a)
475. Item 40 is a consequential amendment to paragraph 27D(1)(a) to reflect the
amendment to subsection 27C(2) and the new subsections 27C(5) and (6).
Item 41 After subsection 27D(2)
476. Item 41 inserts subsection 27D(2A) and subsection 27D(2B). These subsections
set out the content requirements for a computer access warrant, which includes amongst
other things, the name of the applicant and the date the order was made.
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477. This requirement ensures that the warrant clearly states its scope. In the case of a
computer access warrant being sought for determining whether to make a CSO
application, it is not appropriate to list the type of CSO intended to be sought as it will be
too early in the information gathering process to determine which CSO may be sought.
Item 42 After subsection 27D(3A)
478. Item 42 inserts subsection 27D(3B) which provides that to avoid doubt, a warrant
issued on the basis that a community safety supervision order is in force remains in force
for the period mentioned in paragraph (3)(a) even if the order ceases to be in force,
provided that the order is replaced by a succeeding community safety supervision order.
However, if there is no succeeding community safety supervision order, the warrant must
be revoked.
Item 43 At the end of subsection 27E(4)
479. Item 43 inserts paragraph 27E(4)(f) and paragraph 27E(4)(g) to provide that
access to data that is obtained through a warrant is likely to assist in accordance with
paragraph 27A(5B)(d) or is substantially likely to assist in accordance with paragraph
27A(6A)(b).
480. This is a clarifying provision that reiterates the thresholds in section 27A which
must be met before a law enforcement officer may apply for a computer access warrant.
481. The threshold 'likely to assist' is appropriately lower than the threshold
'substantially assist' which applies in warrants where a CSO is already in force and used
for an investigatory purpose (i.e. determining whether an order is being complied with).
This is because:
• there will be a lower level of certainty as to how valuable the information obtained
would be at the early stages of information gathering to put forward to the
Immigration Minister to support a determination as to whether or not to make a CSO
application, and
• the level of risk of the serious offender before release is largely unknown. It is vital
that the serious offender's level of risk to the community is comprehensively
understood to ensure that the type of order (if any) that is ultimately applied for by the
Immigration Minister is appropriately adapted and proportionate to the threat to
community safety posed by the serious offender if released into the community.
Item 44 Subsection 27F(4)
482. Item 44 is a consequential amendment to subsection 27F(4) to reflect new
subsections 27C(5) and 27C(6).
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Item 45 Subsection 27G(2)
483. Item 45 is a consequential amendment to subsection 27G(2) to reflect new
subsection 27H(4).
Item 46 After paragraph 27H(2)(c)
484. Item 46 inserts paragraph 27H(2)(d) after paragraph 27H(2)(c). Subsection
27H(2) provides the circumstances in which the chief officer of a law enforcement agency
is required to revoke a warrant and take the necessary steps to ensure that access to data
authorised by the warrant is discontinued, new paragraph 27H(2)(d) would also provide
that the warrant was not issued to determine whether to apply for a Part 9.10 order.
Item 47 Subsection 27H(2)
485. Item 47 is a consequential amendment that amends subsection 2H(2) to include
the reference to both subsections (3) and (4), reflecting new subsection (4).
Item 48 Subsection 27H(3)
486. Item 48 is a consequential amendment that omits the term 'surveillance device
warrant' and replaces it with 'computer access warrant' to reflect the correct type of
warrant.
Item 49 After subsection 27H(3)
487. Item 49 inserts subsection 27H(4) which provides that the chief officer must take
reasonable steps under subsection (2) in relation to a computer access warrant that is
issued on the basis of a community safety supervision order that was in force in relation to
a person only if neither the community safety supervision order, nor any succeeding
community safety supervision order, is in force in relation to the person.
Item 50 At the end of section 27H
488. Item 50 would insert new subsection 27H(11). This amendment places an
obligation on the law enforcement officer who is primarily responsible for executing the
warrant, that was issued on the basis that a CSSO order was in force, to immediately
inform the chief officer if there is a change in circumstances affecting the warrant. This
amendment provides for circumstances where:
• the use of a surveillance device under the warrant is no longer required for the
purpose for which it was sought
• if the warrant was sought for the purposes of an integrity operation--the use of a
surveillance device under the warrant is no longer required for the purpose for which
it was sought or the integrity authority for the integrity operation is no longer in
effect, or
89
• if the warrant was sought on the basis of a CSO being in force--where the use of a
surveillance device under the warrant is no longer required for the purpose for which
it was sought, or the CSO (or any succeeding CSO) is no longer in force.
489. This person will be in many cases the officer to whom the warrant was issued
under section 27C and who made the application under existing section 27A. However,
this may not always be the case as section 27A enables a person to apply for a warrant on
behalf of the law enforcement officer. There may also be staffing and organisational
changes during the period the warrant is in place. Item 50 recognises that there may be
multiple people working on the execution of a particular warrant, by placing the obligation
on the person deemed primarily responsible. This position has not been legislated because
agencies frequently structure investigations differently.
Item 51 the end of section 37
490. Item 51 would insert new subparagraph 37(5). This amendment would provide
that law enforcement officers of state and territory police acting in the course of their
duties may also use an optical surveillance device without a warrant to obtain information
about the activities of the person for the purposes of achieving a Part 9.10 object or
determining whether the community safety supervision order has been, or is being,
complied with. The amendment would place limitations on this power, so that the use of
the device cannot involve entry onto premises without permission, or interference with any
vehicle or thing without permission.
Item 52 After subsection 38(3A)
491. Item 52 would insert new subsection 38(3B). This amendment would allow a
state or territory law enforcement officer to use a surveillance device without a warrant to
obtain information subject to a CSSO order, for the purposes of either achieving a part
9.10 object, or determining whether the CSSO has been, or is being, complied with.
492. The amendment would limit the power provided by new subsection 38(3B) to
circumstances where the use involves listening to, or recording, works spoken by a person,
and the use is confined to circumstances where:
• the State or Territory law enforcement officer is the speaker of the words or is a
person, or is included in a class or group of persons, by whom the speaker of the
words intends, or should reasonably expect, the words to be heard; or
• the State or Territory law enforcement officer listens to or records the words with
consent, express or implied, of a person who is permitted to listed to or record words
under Section 38.
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Item 53 At the end of section 38
493. Item 53 would insert new subsection 38(7) to permit a person assisting a State or
Territory law enforcement officer to use a surveillance device without a warrant to obtain
information relating to a person subject to community safety supervision order if it the use
involves listening or recording words spoken by a person where:
• the CSSO is in force in relation to a person, and
• a person is assisting a State or Territory law enforcement officer who is acting in the
course of their duties in relation to achieving a Part 9.10 object or determining
whether a community safety supervision order has been or is being complied with.
494. The amendment would provide that the person assisting may, without warrant,
use a surveillance devise to obtain information relating to the person to whom the CSSO
applies if:
• the use involves listening to, or recording, words spoken by a person; and
• the person assisting is the speaker of the words or is a person, or is included in a class
or group of persons, by whom the speaker of the words intends, or should reasonably
expect, the words to be heard.
Item 54 After subsection 39(3B)
495. Item 54 inserts new subsection 39(3C), which provides that if a CSSO is in force
in relation to a person, a law enforcement officer may, with the written permission of an
appropriate authorising officer, use a tracking device without a warrant to obtain
information relating to the person to either achieve a Part 9.10 object, or determine
whether the community safety supervision order has been complied with.
496. Subsection 39(3C) is subject to the limitation under subsection 39(8), which
provides that an appropriate authorising officer must not give permission for the use,
installation or retrieval of a tracking device, if its use or retrieval involves entry on to
premises without permission or interference with the interior of a vehicle without
permission.
Item 55 Subsection 39(4)
497. Item 50 would amend subsection 39(4) so that it also applies to CSSOs. This
would provide that new subsection 39(3C) has effect despite any other law of the
Commonwealth or of a State or self-governing Territory (including any principle of the
common law) forbidding the use of such a device without a warrant.
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Item 56 Subsections 39(5) and (7)
498. Item 56 amends subsection 39(5) and (7) so that these subsections also apply to
CSSO. Subsections 39(5) permits a law enforcement officer to use more than one tracking
device. Subsection 39(7) provides that a tracking device authorisation and an authorisation
for the retrieval of a tracking device must indicate the period, not exceeding 90 days, for
which the authorisation remains in force.
499. The effect of these amendments is to ensure that multiple tracking devices can be
used under a tracking device authorisation given in relation to a person subject to a control
order, and that any such authorisation (or retrieval authorisation) must indicate the period,
not exceeding 90 days, for which the authorisation remains in force.
Item 57 After paragraph 40(1)(db)
500. Item 57 would insert new paragraph 40(1)(dc) to apply to CSSOs. Section 40 of
the SD Act requires the appropriate authorising officer, who has given their permission for
the use of a tracking device without a warrant under section 39, to make a written record
of giving the authorisation as soon as practicable after giving the authorisation.
501. Specifically, Item 57 inserts new paragraph 40(1) to require that, in relation to a
tracking device authorisation given in relation to a person subject to a CSSO, the matters
which are to be recorded must also include details identifying the name of the person, the
date the order was made, when the order comes into force.
Item 58 Subparagraph 45(5)(ia)(i)
502. Item 58 amends subparagraph 45(5)(ia)(i) so that it would read "Division 105A
(post-sentence orders) or Division 395 (community safety orders)". This amendment
would extend the allowance for protected information to be used, recorded,
communicated, published or admitted into evidence where it is necessary to do so 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 Division 395 (community safety
orders).
Item 59 After paragraph 45(5)(k)
503. Item 59 would insert new paragraphs 45(5)(ka) and (kb).
504. Paragraph 45(5)(ka) would allow information obtained under a warrant issued on
the basis of a CSSO, or relating to a warrant authorisation, or likely to enable the
identification of a person, object or premises specified in the warrant to be used, recorded,
communicated, published or admitted into evidence to determine whether the community
safety supervision order is being complied with.
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505. Paragraph 45(5)(kb) would allow information obtained under a tracking device
authorisation given on the basis of a CSSO, or relating to a tracking device authorisation,
or likely to enable the identification of a person, object or premises specified in a tracking
device authorisation to be used, recorded, communicated, published or admitted into
evidence to determine whether the CSSO is being complied with.
Item 60 Subsection 45(5A)
506. Item 60 would omit "and (j)" and substitute it with ", (j) and (ka)" in subsection
45(5A). This item would add a reference to new paragraph 45(5)(ka) within subsection
45(5A). Subsection 45(5A) is an avoidance of doubt provision to ensure that the specific
exemptions that authorise the use of information contained in the specified paragraphs,
including 45(5)(ka), are not used to read down the application of paragraph 45(5)(c).
507. It is intended that reference to 45(5)(ka) prevents the reading down of paragraph
45(5)(c) so that protected information may be used in all circumstances relating to the
following:
• in subsequent civil and criminal proceedings, and
• for information obtained in relation to a community safety detention order - for the
purposes of an application for a community safety supervision order.
508. For example, information obtained in relation to an existing community safety
supervision order could be used for the purposes of determining whether to make a
subsequent application for a community safety supervision order (for instance where the
existing order is expiring), or to bring criminal proceedings against that offender.
Item 61 Subsection 45(5A) (at the end of the note)
509. Item 61 provides that the Note after subsection 45(5A) applies to a Part 9.10
order.
Item 62 Subsection 45(6)
510. Item 62 would omit "(k)" and substitute it with "(kb)" in subsection 45(6). This
item is a consequential amendment to subsection 45(6) as a result of the amendments
made in item 54.
511. This item would amend subsection 45(6) to clarify that paragraph 45(5)(kb) does
not authorise the use, recording, communication or publication of information of the kind
referred to in paragraph (d) of the definition of 'protected information' in section 44 of the
Act, or the giving of evidence of protected information referred to in paragraph (d) of that
definition, regardless of whether that information is also information referred to in
paragraph (b) or (c) of that definition.
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Item 63 After section 46A
512. Item 63 inserts new section 46B to deal with the destruction of records or reports
comprised of information obtained under a community safety supervision order warrant
issued, or a tracking device authorisation given, to determine whether the community
safety supervision order, or any succeeding community safety supervision order, has been,
or is being, complied with prior to the community safety supervision order having come
into force.
513. Item 63 requires information obtained prior to the community safety supervision
order having come into force--that is, prior to the person having been able to comply with
the community safety supervision order -- to be destroyed as soon as practicable.
However, the destruction requirement does not apply to records or reports that are likely to
assist in connection with achieving a Part 9.10 object.
Item 64 After subparagraph 49(2)(b)(xb)
514. Item 64 inserts subparagraph 49(2)(b)(xc) to require the chief officer to report, in
relation to each warrant issued on the basis of a Part 9.10 order, certain details. Item 64
inserts subparagraph 49(2)(b)(xc) to ensure that law enforcement agencies are required to
document and report the value of the use of surveillance devices.
Item 65 After subsection 49(2A)
515. Item 65 inserts new subsection 49(2AA) to apply to Part 9.10 orders. Specifically,
Item 65 inserts paragraph 49(2AA) to reflect that a warrant may be issued both to
determine whether to apply for a Part 9.10 order or when a community safety supervision
order is in force in relation to a person.
Item 66 After subparagraph 49(2B)(b)(ix)
516. Item 66 inserts new subparagraph 49(2B)(b)(ixa) which provides that 'if the
warrant is a Part 9.10 warrant--give the details specified in subsection (2CA).' This
recognises that accessing a person's data under a computer access warrant for is privacy-
intrusive, which requires this proportionate safeguard.
Item 67 After subsection 49(2C)
517. Item 67 inserts new paragraph 49(2CA) for the purposes of new subparagraph
49(2B)(b)(ixa). Paragraph 49(2CA) provides that:
• if the warrant was issued to determine whether to apply for a Part 9.10 order--the
benefit of obtaining access to data held in the computer in determining whether to
make the application (paragraph 49(2CA)(a)); and
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• if the warrant was issued on the basis of a community safety supervision order that is
or was in force in relation to a person--the benefit of obtaining access to data held in
the computer in achieving a Part 9.10 object; or determining whether the community
safety supervision order has been, or is being, complied with (paragraph 49(2CA)(b));
and
• the general use to be made of any evidence or information obtained by access to data
held in the computer (paragraph 49(2CA)(c)).
518. This ensures an appropriate safeguard is in place and recognises the intrusive
nature and infringement of privacy when accessing a person's data.
Item 68 Section 49A (at the end of the heading)
519. Item 68 amends the heading of Section 49A to make it clear that this section
applies to Part 9.10 warrants.
Item 69 Subsection 49A(1)
520. Item 69 amends section 49A(1) to provide that within six months after a Part 9.10
warrant (as defined in subsection 6(1)) is issued, the chief officer of the agency must
notify the Commonwealth Ombudsman that the warrant has been issued and must give the
Commonwealth Ombudsman a copy of the warrant.
Item 70 After paragraph 49A(2)(c)
521. Item 70 inserts a reference to section 46B after paragraph 49A(2)(c). Section 46B
provides that if an obligation to destroy a record is contravened, to the extent that they
relate to a surveillance device warrant or computer access warrant issued on the basis of a
community safety supervision order, the chief officer of the relevant agency must notify
the Commonwealth Ombudsman of that contravention as soon as practicable.
Item 71 Subsection 49A(4)
522. Item 71 inserts a reference to community safety supervision orders within
subsection 49A(4), to make it clear that this section (section 49A) applies in relation to a
tracking device authorisation given on the basis of a community safety supervision order
that is or was in force in the same way as this section applies in relation to a surveillance
device warrant or computer access warrant.
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Item 72 Subsections 50A(2) to (5)
523. Item 72 amends section 50A to apply to Part 9.10 information. Specifically, Item
72 amends section 50A to allow the public reporting of Part 9.10 information to be
deferred until a subsequent report in limited circumstances. Under existing subsection
50A(2), the chief officer of a Commonwealth agency or the chief officer of an eligible
authority of a State or Territory must advise the Minister not to include the information in
the Minister's report, which is tabled in Parliament, if the chief officer is satisfied that the
information is 'Part 9.10 information' as defined in Item 72. This 'Part 9.10 information'
is information that, if made public, could reasonably be expected to enable a reasonable
person to conclude that a warrant is likely to be, or is not likely to be, in force in relation
to a particular premises, object or person.
524. Pursuant to existing subsection 50A(3) the Minister can act on the advice of the
chief officer of the agency and not include the information in the report. If this is the case,
there remains a positive obligation in subsection 50A(4) on the chief officer of the agency
to advise the Minister to include the information in the next report if the chief officer is
satisfied that a reasonable person could no longer draw those inferences from the
information.
525. The reason for section 50A is that it is likely that community safety orders will be
sought and made only rarely, with the effect that a limited number of community safety
orders would be in force at any given time. If agencies were required to
contemporaneously report on the number of warrants issued with respect to persons
subject to a community safety order, and only a limited number of persons are subject to
community safety orders at that time, annual reporting may effectively reveal that a
particular person who is subject a community safety order is or is not also subject to covert
surveillance.
526. The ability of a person to determine, or to speculate with a degree of certainty,
whether they are, or are not, likely subject to surveillance may be further enhanced if the
relevant order contains particular conditions that are particularly amenable to monitoring
by way of a surveillance device. This would undermine the purpose and effectiveness of
such warrants, by enabling and incentivising persons to either adopt counter-measures to
avoid or reduce the effectiveness of covert surveillance (if the person determines they are,
or are likely to be, under surveillance), or to breach the terms of the order.
Item 73 Subsection 50A(6)
527. Item 73 amends subsection 50A(6) to insert a definition for 'Part 9.10
information' that may be deferred from inclusion in the annual report in the circumstances
set out in new subsection 50A(6).
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Item 74 Paragraph 52(1)(j)
528. Item 74 amends paragraph 52(1)(j) to insert references to subsection 46B(1) or
(2), which relate to the destruction of records where information was obtained before a
community safety supervision order came into force.
529. Section 52(1)(j) requires the chief officer of a law enforcement agency to keep
details of the destruction of records or reports.
Item 75 Subparagraphs 53(2)(c)(iiic)
530. Item 75 amends subparagraphs 53(2)(c)(iiic) to apply to CSOs.
531. Section 53 requires the chief officer of a law enforcement agency to cause a
register of warrants and emergency and tracking device authorisations sought by law
enforcement officers of their agency to be kept. Subsection 53(2) specifies what must be
included in the register in relation to surveillance device warrants.
Item 76 Subsection 55(2A)
Item 77 Subsection 61(4) (at the end of the heading)
Item 78 At the end of subsection 61(4)
Item 79 Paragraphs 61(6)(c) and (d)
Item 80 Section 61A (at the end of the heading)
Item 81 Subsection 61A(1)
532. Items 76-81 make various consequential amendments to sections 55, 61 and 61A,
to ensure that Part 9.10 warrants and Part 9.10 information are reflected in these
provisions.
Item 82 After subsection 64A(6)
533. This item would insert new subsection 64A(6AA), which would replicate existing
subsection 64A(6), with necessary amendments to apply to Part 9.10 warrants. New
subsection 64A(6AA) would provide that for a computer that is the subject of a Part 9.10
warrant that is a computer access warrant, an eligible Judge or nominated AAT member
may grant the assistance order if they are satisfied that the requirements set out in new
subsection are met.
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Telecommunications (Interception and Access) Act 1979
Item 83 Subsection 5(1)
534. This item amends subsection 5(1) of the TIA Act by establishing definitions of
the terms 'community safety detention order', 'community safety supervision order',
'Immigration Minister', 'Part 9.10 object', 'Part 9.10 order', 'Part 9.10 warrant' and 'Part
9.10 warrant agency' for the purpose of the TIA Act.
535. The definitions are as follows:
• 'Community safety detention order' and 'community safety supervision' order has the
same meaning as in Division 395 of the Criminal Code. Community safety detention
order means an order made under subsection 395.12(1), and community safety
supervision order means an order made under subsection 395.13(1) (both explained
above).
• 'Immigration Minister' means the Minister administering the Migration Act 1958. At
the time of writing, December 2023, this is the Minister for Home Affairs.
• 'Part 9.10 object' means the protection of the community from the unacceptable risk
of a serious offender committing serious violent of sexual offences.
• 'Part 9.10 order' means a community safety detention order or a community safety
supervision order.
• 'Part 9.10 warrant' means a warrant issued under subsection 46(9) or (12) or 46A(2E)
or (2G) of the TIA Act, or under section 48 of the TIA Act in the circumstances
mentioned in subsection 46(9) or (12) of the TIA Act.
• 'Part 9.10 warrant agency' means a Commonwealth agency or an eligible authority of
a State that a declaration in force under section 34 of the TIA Act authorises to apply
for Part 9.10 warrants.
Item 84 Subsection 5(1) (at the end of paragraph (b) of the definition of permitted
purpose
536. This item extends the definition of 'permitted purpose' in the case of the AFP, by
adding to the definition of that term, a purpose connected with:
• 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, Division 395 of the Criminal
Code (new subparagraph 5(1)(b)(x)), or
• the making of a decision whether to apply for a Part 9.10 order, or for a variation or
review of a Part 9.10 order, under Division 395 of the Criminal Code in relation to a
person (new subparagraph 5(1)(b)(xi)).
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Item 85 Subsection 5(1)
537. This item amends subsection 5(1) of the TIA Act by establishing definitions of
the terms 'serious offender', 'serious violent or sexual offence' and 'succeeding
community safety order', for the purpose of the TIA Act.
538. The definitions are as follows:
• 'Serious offender' has the same meaning as in Division 395 of the Criminal Code.
This term is defined in subsections 395.5(1) and (2) of the Criminal Code (explained
above).
• 'Serious violent or sexual offence' which has the same meaning as in Division 395 of
the Criminal Code. It means an offence against a law of the Commonwealth, a State
or a Territory where it is an offence punishable by imprisonment for life or for a
period, or maximum period, of at least 7 years; and the particular conduct constituting
the offence involved, involves or would involve, as the case requires:
o loss of a person's life or serious risk of loss of a person's life
o serious personal injury or serious risk of serious personal injury; sexual assault
o the production, publication, possession, supply or sale of, or other dealing in,
child abuse material (within the meaning of Part 10.6 of the Criminal Code)
o consenting to or procuring the employment of a child, or employing a child, in
connection with child abuse material, or
o acts done in preparation for, or to facilitate, the commission of a sexual offence
against a person under 16.
• 'Succeeding community safety order' has the meaning given by section 6UB of the
TIA Act (explained below).
Item 86 Paragraph 5B(1)(bb)
539. This item inserts new paragraph (bba) into subsection 5B(1) to include in the
definition of 'exempt proceeding' for the purpose of the TIA Act a proceeding under, or a
proceeding relating to a matter arising under, Division 395 of the Criminal Code.
540. This amendment would allow agencies to give lawfully intercepted information
in proceedings under or relating to Division 395 of the Criminal Code, subject to the
exemptions in the TIA Act (sections 74 and 143 of the TIA Act). This includes related
proceedings, such as appeal proceedings.
541. If information is given in evidence (whether before or after the commencement of
this section) in an exempt proceeding, that information, or any part of that information,
may later be given in evidence in any proceeding (sections 75A and 145 of the TIA Act).
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Item 87 Paragraph 6H(a)
542. This item amends paragraph 6H(a) to omit 'or 46(7)(c) to (h)' and substitute
'46(7)(c) to (h), 46(9)(c) to (e), or 46(12)(c) to (h)'.
543. The effect of this amendment is that for the purposes of the TIA Act, an
application by an agency to a Judge or nominated AAT member for a warrant relates to a
particular person if, and only if, information has been, or is proposed to be, given to
the Judge or nominated AAT member under Part 2-5 of the TIA Act, in connection with
the application, in order to satisfy the Judge or AAT member, in relation to the person, of
the matters referred to - in the case of a warrant under section 48 of the TIA Act - in the
paragraphs listed above, as the case requires.
Item 88 Paragraph 6H(b)
544. Item 83 amends paragraph 6H(b) to omit 'or 46A(2C)(c) to (h)' and substitute it
for 46A(2C)(c) to (h), 46A(2E)(c) to (e), and 46A(2G)(a) to (h)'.
545. The effect of this amendment is that for the purposes of the TIA Act, an
application by an agency to a Judge or nominated AAT member for a warrant relates to a
particular person if, and only if, information has been, or is proposed to be, given to
the Judge or nominated AAT member under Part 2-5 of the TIA Act, in connection with
the application, in order to satisfy the Judge or AAT member, in relation to the person, of
the matters referred to - in the case of any warrant under Part 2-5 of the TIA Act other that
a warrant under section 48 - in the paragraphs listed above, as the case requires.
Item 89 After section 6U
Section 6UA - When a CSSO is taken to be in force
546. New section 6UA would provide that for the purpose of the TIA Act, a CSSO is
taken to be in force in relation to a person if the order has been made but the period
specified in the order under paragraph 395.13(5)(d) of the Criminal Code - that being the
period during which the order is to be in force - has not yet begun.
547. This is necessary to ensure that any telecommunications interception device
installed under the TIA Act, can be installed covertly to avoid any risks associated with
the person witnessing the installation process, and the device is ready for use as soon as
the order comes into force.
Section 6UB - Succeeding CSSOs
548. New section 6UB introduces the concept of a 'succeeding CSSO', reflecting that,
under Division 395 of the Criminal Code, there is no limit on the number of CSSOs that
can be made in relation to a serious offender in succession.
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549. A succeeding CSSO is any later CSSO that is made in relation to a person who
has already been subject to an initial CSSO (subsection 6UB(1)). Where two or more
successive CSSOs are made in relation to a person, each later CSSO is succeeding CSSO
in relation to each earlier CSSO (subsection 6UB(2)).
Item 90 Subsection 7(9) (at the end of the note)
550. This item would add to the end of the note to subsection 7(9) 'or, (c) purposes
relating to a CSSO or an application for a Part 9.10 order'.
551. The amendment would clarify that a Part 2-5 warrant can be issued for purposes
relating to a CSSOs or an application for a Part 9.10 order.
Item 91 Section 34 (note)
552. This item amends the note to section 34 by adding 'Part 9.10 warrants' after 'Part
5.3 warrants.
553. This clarifies that a declaration made by the Minister pursuant to this section may
authorise an eligible authority to apply for a Part 9.10 warrant.
Item 92 Section 34 (note)
554. This item amends the note to section 34 to omit the 'section 38A' and substitute
'sections 38A and 38B'. This signposts the relevant information in new section 38B about
agencies authorised to apply for part 9.10 warrants.
Item 93 At the end of Division 2 of Part 2-5
Section 38B - Agencies authorised to apply for Part 9.10 warrants
555. New section 38B applies to a declaration made under section 34 in relation to an
eligible authority of a State (subsections 38B(1)).
556. New subsections 38B(2) and (3) provide the Minister with the ability to
respectively make and amend a declaration under section 34 to authorise an eligible
authority to apply for Part 9.10 warrants under section 46 as amended by item 93
(explained below). New subsection 38B(2) provides that the Minister must so authorise
the eligible authority if the Premier of the relevant State requests that the eligible authority
be so authorised and the Minster is satisfied of the criteria in subsection 38B(4) (explained
below). New subsection 38B(2) provides that the Minister must amend the declaration if
the same circumstances apply and the declaration does not already provide the required
authorisation.
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557. New subsection 38B(4) sets out the criteria of which the Minister must be
satisfied in order to authorise an eligible authority to apply for Part 9.10 warrants. These
criteria include that the law of the relevant State satisfactorily grants powers to relevant
personnel and agencies to oversight the eligible authority's activities in applying for and
executing the warrant.
558. New subsection 38B(5) requires the Minister to remove the authorisation of an
eligible authority to apply for Part 9.10 warrants, if requested to do so by the Premier or
Chief Minister of the relevant State.
559. New subsection 38B(6) enables the Minister to amend a declaration under section
34 to remove an authorisation allowing an eligible authority to apply for Part 9.10
warrants, if satisfied that the laws of the relevant State no longer make satisfactory
provision for the particular requirements in subsection 38B(4), or that the extent of
compliance with the law of a relevant State or the TIA Act has been unsatisfactory on the
part of specified individuals.
560. These provisions reflect the extant power of the Minister to revoke a declaration
of an eligible authority, under section 37 of the TIA Act.
561. New subsection 38B(7) provides that, if the Minister amends a declaration under
subsections 38B(5) or (6) to remove an authorisation allowing an eligible authority to
apply for Part 9.10 warrants, the amendment does not affect the validity of a Part 9.10
warrant issued before the amendment. This provision ensures that carriers, carriage service
providers and agencies do not inadvertently engage in unlawful interception under a
warrant issued to the relevant agency prior to the amendment, from the moment the
amendment is made onwards, and that information obtained under such a warrant remains
lawfully intercepted information.
Item 94 Paragraph 44A(2)(a)
562. This item amends paragraph 44A(2)(a) to omit 'or 46(8)(a) to (e)' and substitute
'46(8)(a) to (e), 46(10)(a) to (h) or 46(13)(a) to (e)'.
563. This amendment expands the Victorian PIMs ability to make a submission to a
Judge or nominated AAT member in relation to an application for a warrant in respect of a
telecommunications service, to include submissions about the matters mentioned in any of
the paragraphs above, as the case requires.
Item 95 Item 90 - Paragraph 44A(2)(b)
564. This item amends paragraph 44A(2)(b) to omit 'or 46A(2D)(a) to (e)' and
substitute '46A(2D)(a) to (e), 46A(2F)(a) to (h) or 46A(2H)(a) to (e)'.
565. This amendment expands the Victorian PIMs ability to make a submission to the
Judge or nominated AAT members in relation to applications for a warrant in respect of a
person to include submissions about the matters mentioned in any of the paragraphs
above, as the case requires.
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Item 96 Paragraph 45(2)(a)
566. This item amends paragraph 45(2)(a) to omit 'or 46(8)(a) to (e)' and substitute
'46(8)(a) to (e), 46(8)(a) to (e), 46(10)(a) to (h) or 46(13)(a) to (e)'.
567. This amendment expands the Queensland PIMs ability to make a submission to
the Judge or nominated AAT members in relation to applications for a warrant in respect
of a telecommunications service to include submissions about the matters mentioned in
any of the paragraphs above, as the case requires.
Item 97 Paragraph 45(2)(b)
568. This item amends paragraph 45(2)(b) to omit 'or 46A(2D)(a) to (e)' and
substitute for '46A(2D)(a) to (e), 46A(2F)(a) to (h) or 46(2H)(a) to (e)'.
569. This amendment expands the Queensland PIMs ability to make a submission to
the Judge or nominated AAT members in relation to applications for a warrant in respect
of a person to include submissions about the matters mentioned in any of the paragraphs
above, as the case requires.
Item 98 At the end of subsection 46
570. This item amends section 46 - Issue of telecommunications service warrant, to
insert new subsections 46(9)-(13).
571. New subsection 46(9) relates to warrants sought for CSSOs. It provides that a
Judge or nominated AAT member may issue a telecommunications service warrant if a
Part 9.10 warrant agency applies to them for such a warrant and the Judge or nominated
AAT member is satisfied on the basis of the information provided to them in the
connection with the application of the following matters:
• Division 3 of the TIA Act, which sets out requirements in relation to applications for
warrants, has been complied with (paragraph 46(9)(a)).
• In the case of a telephone application--because of urgent circumstances, it was
necessary to make the application by telephone (paragraph 46(9)(b)). This recognises
that telephone applications are intended to be reserved for exceptional circumstances
and if possible, the application should be made in person.
• There are reasonable grounds for suspecting that a particular person is using, or is
likely to use, the service (paragraph 46(9)(c)). If this is not the case, the warrant is
unnecessary.
• A CSSO is in force in relation to the particular person with respect to whom the
warrant is being sought or a CSSO is in force in relation to another person, and the
particular person is likely to communicate with the other person using the service
(paragraph 46(9)(d)). This reflects that a purpose of the warrant to support monitoring
compliance with a CSSO.
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• Information that would be likely to be obtained by intercepting, under a warrant,
communications made to or from the telecommunications service would be likely to
substantially assist in connection with achieving a Part 9.10 object (that is, the
protection of the community from serious harm by providing that non-citizens who
pose an unacceptable risk of committing serious violent or sexual offences and have
no real prospects of their removal from Australia becoming practicable in the
reasonably foreseeable future are subject to a CSO) or determining whether a CSSO
order, or any succeeding CSSO, has been, or is being, complied with (paragraph
46(9)(e)).
• Having regard to matters referred to in subsection 46(10) only (explained below), a
warrant should be issued allowed communications to be intercepted (paragraph
46(9)(f)).
572. Note 1 to subsection 46(9) highlights that subsection 46(11) (explained below)
restricts the issuing of warrants if a CSSO is in force in relation to a person other than the
person with respect to whom to warrant is being sought, and the person who is subject to
the CSSO is likely to communicate with the other person using the relevant
telecommunications service.
573. Note 2 to subsection 46(9) refers the reader to section 6UA (explained above) for
information about CSSOs that have been made but have not come into force.
574. New subsection 46(10) provides that, for the purposes of subsection 46(9), the
matters to which the Judge or nominates AAT member must have regard includes:
• How much the privacy of any persons would be likely to be interfered with by
intercepting communications made to or from the relevant telecommunications
service under a warrant (paragraph 46(10)(a)); whether intercepting communications
under a warrant would be the method likely to have the least interference with any
person's privacy (paragraph 46(10)(f)); and how much the information obtained under
the warrant would be likely to assist in connection with achieving a Part 9.10 object or
determining whether a CSSO, or any succeeding CSSO, has been, or is being,
complied with (paragraph 46(10)(b)). The intention is that interference with privacy
should only occur to the extent that is reasonable and necessary for the purpose of
protecting the community from the unacceptable risk of a serious offender committing
serious violent of sexual offences and monitoring compliance with a CSSO.
• To what extent other methods have been used by, or are available to, the agency
seeking the warrant to protecting the community from the unacceptable risk of a
serious offender harming the community and monitoring compliance with the CSSO
(paragraph 46(10)(c)); how much the use of these alternative methods would be likely
to assist the agency (paragraph 46(10)(d)); and how much it would be likely to
prejudice their community protection and monitoring compliance efforts (paragraph
46(10)(e)). The intention is that if there are other effective and non-prejudicial
methods available to the agency, these should be preferred over a telecommunications
service warrant.
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• The possibility that the person in relation to whom the CSSO or succeeding CSSO is
in force is, has or will commit a serious violent or sexual offence (paragraph
46(10)(g)) or contravene the CSSO (paragraph 46(10)(h)). These requirements
designed to ensure that the issuing authority has regard to evidence of both a specific
risk or propensity of the person engaging in such conduct or breaching the order, as
well as evidence that there is a general risk or propensity that the person will engage
in such conduct or breach the order. In making this decision, the Judge or nominated
AAT member may consider a range of information, possibly including:
o specific or general evidence indicating that there is a possibility that
the person may engage in the conduct the order is intended to prevent,
or may breach the order
o evidence pre-dating the issuing or service of the order, including the
grounds on which the order was issued, that may indicate such a
possibility, notwithstanding the fact that the order has subsequently
been issued and/or served, and
o evidence about whether other persons subject to orders have engaged
in conduct the order is intended to prevent, or have breached their
order, to the extent such evidence may indicate whether there is a
possibility the person in question may engage in such conduct or
breach the extant order.
In essence, these cumulative factors require the issuing authority to undertake a
proportionality test taking into consideration privacy concerns and the extent to
which interception would assist in protecting the community from serious
violent or sexual offences or monitoring compliance with an order.
• In relation to an application by an interception agency of Victoria or Queensland --
any submissions made by the Victorian or Queensland PIM respectively (paragraphs
46(10)(i) and (j)).
575. New subsection 46(11) applies in where a CSSO is in force in relation to a person
other than the person with respect to whom the warrant is being sought, and the person
who is subject to the CSSO is likely to communicate with the other person using the
relevant telecommunications service. The effect of subsection 46(11) is that the issuing
authority must not issue a telecommunications service warrant in these circumstances
unless satisfied that:
• the agency has exhausted all other practicable methods of identifying the
telecommunications services used, or likely to be used, by the person to whom the
CSSO relates, or
• interception of communications made to or from a telecommunications service used
or likely to be used by that person would not otherwise be possible.
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576. New subsection 46(12) relates to warrants sought for Part 9.10 order applications.
The purpose of a warrant sought to determine whether to apply for a Part 9.10 order in
relation to a person is to ensure the Immigration Minister is provided contemporary
evidence to assist in understanding the offender's level of risk, which will inform the
decision whether or not to apply for a Part 9.10 order.
577. New subsection 46(12) provides that a Judge or nominated AAT member may
issue a telecommunications service warrant if a Part 9.10 warrant agency applies to them
for such a warrant and the Judge or nominated AAT member is satisfied on the basis of the
information provided to them in the connection with the application of the following
matters:
• Division 3 of the TIA Act, which sets out requirements in relation to applications for
warrants, has been complied with (paragraph 46(12)(a)).
• In the case of a telephone application--because of urgent circumstances, it was
necessary to make the application by telephone (paragraph 46(12)(b)). This recognises
that telephone applications are intended to be reserved for exceptional circumstances
and if possible, the application should be made in person.
• There are reasonable grounds for suspecting that a particular person is using, or is
likely to use, the service (paragraph 46(12)(c)). If this is not the case, the warrant is
unnecessary.
• The person with respect to whom the warrant is being sought is a serious offender (as
defined in subsection 5(1) explained above) in relation to whom an application for a
Part 9.10 order (that is, a CSO), could be made (paragraph 46(12)(d)).
• There are reasonable grounds to suspect that there is an appreciable level of risk of the
person committing a serious violent or sexual offence (paragraph 46(12)(e)). This
threshold is appropriately connected to the risk posed by the particular offender, rather
than allowing the warrant to be available regardless of whether there is any suspicion
about the apprehended conduct of a particular individual. For instance, it may be that
the Immigration Minister could rely on the established propensity of the offender to
engage in certain types of conduct, by reference to the earlier conviction and to any
relevant other information received previously or since, as a basis for referring to the
types of serious violent or sexual offences of which the offender is suspected of being
at risk of committing.
• Consideration is being given, will be given, or is likely to be given by the Immigration
Minister or a person acting on their behalf, as to whether to apply for a Part 9.10 order
in relation to the person (paragraph 46(12)(f)). This ensures that a warrant to start an
information gathering process cannot be sought in respect of an offender who will not
be considered for a Part 9.10 order.
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• Information that would be likely to be obtained by intercepting, under a warrant,
communications made to or from the telecommunications service would be likely to
assist in determining whether to apply for the part 9.10 order (paragraph 46(12)(g)).
The threshold 'likely to assist' is appropriately lower than the threshold 'substantially
assist' which applies for warrants where a Part 9.10 order is already in force and is
used for an investigatory purpose (that is determining whether an order is being
complied with). This is because there will be a lower level of certainty as to how
valuable the information obtained would be at the early stages of information
gathering to put forward to the Immigration Minister to support a determination as to
whether or not to make a Part 9.10 order application.
• Having regard to matters referred to in subsection 46(13) only (explained below), a
warrant should be issued allowed communications to be intercepted (paragraph
46(12)(h)).
578. New subsection 46(13) provides that, for the purposes of subsection 46(12), the
matters to which the Judge or nominates AAT member must have regard are as follows:
• How much the privacy of any persons would be likely to be interfered with by
intercepting communications made to or from the relevant telecommunications
service under a warrant (paragraph 46(13)(a)); and how much the information
obtained under the warrant would be likely to assist in determining whether to apply
for a Part 9.10 order (paragraph 46(13)(b)). The intention is that interference with
privacy should only occur to the extent that is reasonable and necessary for the
purpose of determining whether to apply for a Part 9.10 order to the community from
the unacceptable risk of a serious offender committing serious violent of sexual
offences.
• To what extent other methods have been used by, or are available to, the Immigration
Minister or their legal representative for determining whether to apply for a Part 9.10
order (paragraph 46(13)(c)); how much the use of these alternative methods would be
likely to assist in making this determination (paragraph 46(13)(d)); and how much it
would be likely to prejudice making this determination (paragraph 46(13)(e)). The
intention is that if there are other effective and non-prejudicial methods available to
the Immigration Minister or their legal representative, these should be preferred over a
telecommunications service warrant.
• In relation to an application by an interception agency of Victoria or Queensland --
any submissions made by the Victorian or Queensland PIM respectively (paragraphs
46(13)(f) and (g)).
579. In essence, these cumulative factors require the issuing authority to undertake a
proportionality test taking into consideration privacy concerns and the extent to which
interception would assist in the decision to determine whether to make a Part 9.10 order
application. Even after this proportionality test, the Judge or nominated AAT member
retains the discretion to issue the warrant.
107
580. There is no requirement, unlike for warrants sought in a case where a CSSO is in
force in relation to a person, for a Judge or AAT member to consider whether intercepting
communications in accordance with the warrant would be the means of obtaining the
evidence or information sought to be obtained that is likely to have the least interference
with any person's privacy. This is appropriate and consistent with the threshold and
intended outcome of this measure - that is to obtain information that will 'likely assist' in
determining whether or not a Part 9.10 order application should be made. However as
above, the Judge or AAT member has discretion to consider the extent to which the
privacy of any person is likely to be affected.
Item 99 After subsection 46A(2D)
581. This item introduces new subsections 46A(2E), (2F), (2G) and (2H) after
subsection 46A(2D). Subsections 46A(2E) and (2F) concern the issuing of named person
warrants as they apply to CSSOs and subsections 46A(2G) and (2H) concern the issuing
of named person warrants sought for Part 9.10 order applications. Named person warrants
enable all telecommunications services used or likely to be used by the person named in
the warrant to be intercepted. These new provisions permit the issue of a named person
warrant in relation to a person subject to a CSSO or a warrant sought for a Part 9.10 order
application.
582. New subsection 46A(2E) provides that a Judge or nominated AAT member may
issue a telecommunications service warrant if a Part 9.10 warrant agency applies to them
for such a warrant and the Judge or nominated AAT member is satisfied on the basis of the
information provided to them in the connection with the application of the following
matters:
• Division 3 of the TIA Act, which sets out requirements in relation to applications for
warrants, has been complied with (paragraph 46A(2E)(a)).
• In the case of a telephone application--because of urgent circumstances, it was
necessary to make the application by telephone (paragraph 46A(2E)(b)). This
recognises that telephone applications are intended to be reserved for exceptional
circumstances and if possible, the application should be made in person.
• There are reasonable grounds for suspecting that a particular person is using, or is
likely to use, the service (paragraph 46A(2E)(c)). If this is not the case, the warrant is
unnecessary.
• A CSSO is in force in relation to the person (paragraph 46A(2E)(d)). This reflects that
a purpose of the warrant to support monitoring compliance with a CSSO.
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• Information that would be likely to be obtained by intercepting, under a warrant,
communications made to or from the telecommunications service would be likely to
substantially assist in connection with achieving a Part 9.10 object (that is, the
protection of the community from serious harm by providing that non-citizens who
pose an unacceptable risk of committing serious violent or sexual offences and have
no real prospects of their removal from Australia becoming practicable in the
reasonably foreseeable future are subject to a CSO) or determining whether a CSSO
order, or any succeeding CSSO, has been, or is being, complied with (paragraph
46A(2E)(e)).
• Having regard to matters referred to in subsection 46A(2F) only (explained below), a
warrant should be issued allowed communications to be intercepted (paragraph
46A(2E)(h)).
583. Note 1 to subsection 46A(2E) highlights that subsection 46(11) (explained below)
restricts the issuing of warrants if a CSSO is in force in relation to a person other than the
person with respect to whom to warrant is being sought, and the person who is subject to
the CSSO is likely to communicate with the other person using the relevant
telecommunications service.
584. Note 2 to subsection 46A(2E) refers the reader to section 6UA (explained above)
for information about CSSOs that have been made but have not come into force.
585. New subsection 46A(2F) provides that, for the purposes of subsection 46A(2E),
the matters to which the Judge or nominates AAT member must have regard includes:
• How much the privacy of any persons would be likely to be interfered with by
intercepting communications made to or from the relevant telecommunications
service under a warrant (paragraph 46A(2F)(a)); whether intercepting
communications under a warrant would be the method likely to have the least
interference with any person's privacy (paragraph 46(2F)(f)); and how much the
information obtained under the warrant would be likely to assist in connection with
achieving a Part 9.10 object or determining whether a CSSO, or any succeeding
CSSO, has been, or is being, complied with (paragraph 46A(2F)(b)). The intention is
that interference with privacy should only occur to the extent that is reasonable and
necessary for the purpose of protecting the community from the unacceptable risk of a
serious offender committing serious violent of sexual offences and monitoring
compliance with a CSSO.
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• To what extent other methods have been used by, or are available to, the agency
seeking the warrant to protecting the community from the unacceptable risk of a
serious offender harming the community by committing serious violent or sexual
offences and monitoring compliance with the CSSO (paragraph 46A(2F)(c)); how
much the use of these alternative methods would be likely to assist the agency
(paragraph 46A(2F)(d)); and how much it would be likely to prejudice their
community protection and monitoring compliance efforts (paragraph 46A(2F)(e)).
The intention is that if there are other effective and non-prejudicial methods available
to the agency, these should be preferred over a telecommunications service warrant.
• The possibility that the person in relation to whom the CSSO or succeeding CSSO is
in force is, has or will commit a serious violent or sexual offence (paragraph
46A(2F)(g)) or contravene the CSSO (paragraph 46A(2F)(h)). These requirements
designed to ensure that the issuing authority has regard to evidence of both a specific
risk or propensity of the person engaging in such conduct or breaching the order, as
well as evidence that there is a general risk or propensity that the person will engage
in such conduct or breach the order. In making this decision, the Judge or nominated
AAT member may consider a range of information, potentially including:
o whether there is specific or general evidence indicating that there is a
possibility that the person may engage in the conduct the order is intended to
prevent, or may breach the order
o evidence pre-dating the issuing or service of the order, including the grounds
on which the order was issued, that may indicate such a possibility,
notwithstanding the fact that the order has subsequently been issued and/or
served, and
o evidence about whether other persons subject to orders have engaged in
conduct the order is intended to prevent, or have breached their order, to the
extent such evidence may indicate whether there is a possibility the person in
question may engage in such conduct or breach the extant order.
In essence, these cumulative factors require the issuing authority to undertake a
proportionality test taking into consideration privacy concerns and the extent to
which interception would assist in protecting the community from serious
violent or sexual offences or monitoring compliance with an order.
• In relation to an application by an interception agency of Victoria or Queensland --
any submissions made by the Victorian or Queensland PIM respectively (paragraphs
46A(2F)(i) and (j)).
586. New subsections 46A(2G) and (2H) enable a Judge or AAT member to consider
issuing a warrant in relation to all telecommunications services used or likely to be used
by the person named in the warrant to be intercepted for the purpose of enabling the
Immigration Minister to determine whether to apply for a Part 9.10 order.
110
587. The underlying purpose of a warrant sought to determine whether to apply for a
Part 9.10 order in relation to a person is to ensure the Immigration Minister is provided
contemporary evidence to assist in understanding the offender's level of risk, which will
inform the decision whether or not to apply for a Part 9.10 order.
588. New subsection 46A(2G) provides that a Judge or nominated AAT member may
issue a telecommunications service warrant if a Part 9.10 warrant agency applies to them
for such a warrant and the Judge or nominated AAT member is satisfied on the basis of the
information provided to them in the connection with the application of the following
matters:
• Division 3 of the TIA Act, which sets out requirements in relation to applications for
warrants, has been complied with (paragraph 46A(2G)(a)).
• In the case of a telephone application--because of urgent circumstances, it was
necessary to make the application by telephone (paragraph 46A(2G)(b)). This
recognises that telephone applications are intended to be reserved for exceptional
circumstances and if possible, the application should be made in person.
• There are reasonable grounds for suspecting that a particular person is using, or is
likely to use, the service (paragraph 46A(2G)(c)). If this is not the case, the warrant is
unnecessary.
• The person with respect to whom the warrant is being sought is a serious offender (as
defined in subsection 5(1) explained above) in relation to whom an application for a
Part 9.10 order (that is, a CSO), could be made (paragraph 46A(2G)(d)).
• There are reasonable grounds to suspect that there is an appreciable level of risk of the
person committing a serious violent or sexual offence (paragraph 46A(2G)(e)). This
threshold is appropriately connected to the risk posed by the particular offender, rather
than allowing the warrant to be available regardless of whether there is any suspicion
about the apprehended conduct of a particular individual. For instance, it may be that
the Immigration Minister could rely on the established propensity of the offender to
engage in certain types of conduct, by reference to the earlier conviction and to any
relevant other information received previously or since, as a basis for referring to the
types of serious violent or sexual offences of which the offender is suspected of being
at risk of committing.
• Consideration is being given, will be given, or is likely to be given by the Immigration
Minister or a person acting on their behalf, as to whether to apply for a Part 9.10 order
in relation to the person (paragraph 46A(2G)(f)). This ensures that a warrant to start
an information gathering process cannot be sought in respect of an offender who will
not be considered for a Part 9.10 order.
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• Information that would be likely to be obtained by intercepting, under a warrant,
communications made to or from the telecommunications service would be likely to
assist in determining whether to apply for the Part 9.10 order (paragraph 46A(2G)(g)).
The threshold 'likely to assist' is appropriately lower than the threshold 'substantially
assist' which applies for warrants where a Part 9.10 order is already in force and is
used for an investigatory purpose (that is determining whether an order is being
complied with). This is because there will be a lower level of certainty as to how
valuable the information obtained would be at the early stages of information
gathering to put forward to the Immigration Minister to support a determination as to
whether or not to make a Part 9.10 order application.
• Having regard to matters referred to in subsection 46A(2H) only (explained below), a
warrant should be issued allowed communications to be intercepted (paragraph
46A(2G)(h)).
589. New subsection 46(2H) provides that, for the purposes of subsection 46A(2G),
the matters to which the Judge or nominates AAT member must have regard include:
• How much the privacy of any persons would be likely to be interfered with by
intercepting communications made to or from the relevant telecommunications
service under a warrant (paragraph 46A(2H)(a)); and how much the information
obtained under the warrant would be likely to assist in determining whether to apply
for a Part 9.10 order (paragraph 46A(2H)(b)). The intention is that interference with
privacy should only occur to the extent that is reasonable and necessary for the
purpose of determining whether to apply for a Part 9.10 order to the community from
the unacceptable risk of a serious offender committing serious violent of sexual
offences.
• To what extent other methods have been used by, or are available to, the Immigration
Minister or their legal representative for determining whether to apply for a Part 9.10
order (paragraph 46A(2H)(c)); how much the use of these alternative methods would
be likely to assist in making this determination (paragraph 46A(2H)(d)); and how
much it would be likely to prejudice making this determination (paragraph
46A(2H)(e)). The intention is that if there are other effective and non-prejudicial
methods available to the Immigration Minister or their legal representative, these
should be preferred over a telecommunications service warrant.
• In relation to an application by an interception agency of Victoria or Queensland --
any submissions made by the Victorian or Queensland PIM respectively (paragraphs
46A(2H)(f) and (g)).
590. In essence, these cumulative factors require the issuing authority to undertake a
proportionality test taking into consideration privacy concerns and the extent to which
interception would assist in the decision to determine whether to make a Part 9.10 order
application. Even after this proportionality test, the Judge or nominated AAT member
retains the discretion to issue the warrant.
112
591. There is no requirement, unlike for warrants sought in a case where a CSSO is in
force in relation to a person, for a Judge or AAT member to consider whether intercepting
communications in accordance with the warrant would be the means of obtaining the
evidence or information sought to be obtained that is likely to have the least interference
with any person's privacy. This is appropriate and consistent with the threshold and
intended outcome of this measure - that is to obtain information that will 'likely assist' in
determining whether or not a Part 9.10 order application should be made. However as
above, the Judge or AAT member has discretion to consider the extent to which the
privacy of any person is likely to be affected.
Item 100 Subsection 48(1) (note)
592. This item amends the note to subsection 48(1). It would omit 'Note' and
substitute 'Note 1', reflecting that a second note is being added to this subsection (see item
96 below).
Item 101 At the end of subsection 48(1)
593. This item adds a new Note 2, to the end of subsection 48(1) that would clarify
that only a Part 9.10 warrant agency may apply for a telecommunications service warrant
in circumstances where the warrant is sought for a CSSO or the warrant it sought for a Part
9.10 order application.
Item 102 Subparagraph 48(3)(d)(ii)
594. This item inserts 'or (9)' after 'subsection 46(4)' in subparagraph 48(3)(d)(ii).
595. The effect of this amendment is that subsections 48(4) and (5) apply where all of
the circumstances are paragraphs 48(3)(a)-(ca) are present and the Judge or nominated
AAT member is satisfied, on the basis of the information given to them under Part 2-5 in
connection with an application for a warrant that if a warrant were issued under section 46,
in the case of a warrant issued in the circumstances mentioned in subsection 46(9),
execution of the warrant might jeopardise the achievement of an objective for which
the warrant was issued.
596. The circumstances in subsection 46(9) are that a warrant agency is applying to an
eligible judge or AAT member for a warrant in respect of a telecommunications service
for a CSSO. The relevant objectives are to protect the community from serious sexual and
violent offences, and monitoring compliance with a CSSO.
597. Subsection 48(4) provides that the Judge or nominated AAT member may issue
a warrant authorising entry onto premises in order to install, maintain, use or
recover equipment or a line used in the interception of communications; and interceptions
of such communications by the use of that equipment or line.
113
598. Subsection 48(5) provides that if the Judge or nominated AAT member issues
such a warrant, the warrant shall state whether entry is authorised to be made at any time
of the day or night or only during specified hours; and the warrant may provide that entry
may be made without permission first being sought or demand first being made, and
authorise measures that the Judge or nominated AAT member is satisfied are necessary
and reasonable for that purpose.
Item 103 After subsection 49(6A)
599. This item inserts new subsection 49(6B) after subsection 49(6A). New subsection
49(6B) is an avoidance of doubt provision which clarifies that a warrant issued on the
basis that a CSSO is in force, remains in force for the period specified in the warrant or
otherwise up to 90 days (see subsection 49(3)), even if the CSSO ceases to be in force
during that period, provided that the CSSO is replaced by a succeeding CSSO.
600. The note to new subsection 49(6B) clarifies that if a CSSO ceased to be in force
and is not replaced by a succeeding CSSO during the period for which the warrant is in
force, the warrant must be revoked. The note refers to section 57 for further information
about the revocation of a warrant.
Item 104 Paragraph 49(3)(a)
601. This item omits 'or 46(4)(d)(ii)' from paragraph 49(3)(a) and substitute
'46(4)(d)(ii) or 46(9)(d)(ii)'.
602. The effect of adding the reference to subparagraph 46(9)(d)(ii) to this provision is
that a warrant for a CSSO shall specify the period for which it is to be in force, up to 45
days where the CSSO is in force in relation to a person other than the person with respect
to whom to warrant is being made, and the person who is subject to the CSSO is likely to
communicate with the other person using the relevant telecommunications service.
Item 105 At the end of section 49
603. This item introduces new subsections 49(10) and (11) which set out requirements
for information that must be contained in a warrant issued for a CSSO that is in force and
a warrant issued to determine whether to make an application for a Part 9.10 order in
relation to a person respectively.
604. New subsection 49(10) requires that a warrant issued for a CSSO that is in force:
• state that the warrant is issued on the basis of a CSSO made in relation to a person
• specify the name of the person, and
• specify the date the CSSO was made.
605. New subsection 49(11) requires that a warrant issued to determine whether to
make an application for a Part 9.10 order in relation to a person:
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• state that the warrant is issued on that basis, and
• specify the name of the person.
Item 106 At the end of section 57
606. This item introduces new subsection 57(7), which provides that the chief officer
of an agency must revoke a CSSO warrant that was made on the basis that a CSSO was in
force, if the CSSO or any succeeding CSSO has ceased to be in force.
607. This is appropriate because the fact that the CSSO was in force was one of the
grounds on which the warrant was issuable, and once the CSSO succeeding CSSO has
ceased to be in force, that ground no longer exists.
Item 107 After Section 59B
608. This item introduces new section 59C which imposes consistent notification
obligations on all Commonwealth agencies, on the basis that if an agency has the ability to
obtain a Part 9.10 order warrant, then the agency should be subject to oversight and
accountability requirements. Subsection 59C(1) provides that within 6 months after a Part
9.10 warrant is issued in response to an application by a Commonwealth agency, the chief
officer of the agency must notify the Ombudsman that the warrant has been issued, and
give the Ombudsman a copy of the warrant.
609. If an officer of a Commonwealth agency contravenes any of the conditions,
restrictions or provisions set out in new subsection 59C(2), the chief officer of the agency
must notify the Ombudsman of the contravention as soon as practicable after the
contravention occurs.
610. However, subsection 59C(3) would provide that a failure to comply with the
requirements set out in section 59C does not affect the validity of the warrant.
Item 108 At the end of subsection 65A(2)
611. This item introduces a new paragraph 65A(2)(c) which would allow an employee
of a carrier to communicate lawfully intercepted information and interception warrant
information for the purposes of achieving a Part 9.10 object, determining whether a CSSO
has been, or is being, complied with, or 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, Division 395 of the Criminal Code. It is appropriate to ensure that any
information that may assist in the achievement of these critical community safety
objectives can be communicated for that purpose.
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Item 109 At the end of subsection 67(1C)
612. This item would introduce new paragraphs 67(1C)(d) and (e), which would
establish new purposes for which an officer or staff member of
an agency may communicate to another person, make use of, or make a record of
information, that has not been communicated to an officer of the agency under section 68,
and:
• was obtained by an officer or staff member of an agency by intercepting
a communication when exercising authority under a warrant issued to another agency;
or
• was communicated to an officer or staff member of an agency in accordance
with section 66, where the information was obtained by intercepting
a communication under a warrant issued to another agency; or
• that is interception warrant information in relation to a warrant issued to
another agency.
613. New paragraphs 67(1C)(d) and (e) provide that an officer or staff member of
an agency may communicate to another person, make use of, or make a record of
information of the kinds described above, for the purposes of achieving a Part 9.10 object,
determining whether a CSSO has been, or is being, complied with, or 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, Division 395 of the Criminal Code. It is appropriate to
ensure that any information that may assist in the achievement of these critical community
safety objectives can be communicated, used or recorded for that purpose.
Item 110 Item 105 - After section 79A
Section 79AB - Destruction of restrictive records - information obtained a CSSO came
into force
614. This item introduces new section 79AB which addresses the destruction of
restrictive records.
615. Subsection 79AB(1) applies to restricted records that are in the possession of an
agency and relate to an interception authorised by a CSSO warrant that was issued for the
purpose of monitoring compliance with a CSSO, and executed after the CSSO was made
but before it came into force. It provides that the chief officer of the agency must cause
such restricted records to be destroyed as soon as practicable if the chief officer is satisfied
that none of the information obtained by the interception is likely to assist in connection
with the protection of the community from the unacceptable risk of a serious offender
committing serious violent or sexual offence. This amendment safeguards against
retaining, and using information intercepted, other than for the purposes for which it was
intercepted.
116
616. Subsection 79AB(2) provides that section 6UA does not apply to subsection
79AB(1). Section 6UA provides that a CSSO is in force notwithstanding it has not been
served on the subject. Excluding the application of this provision from subsection
79AB(1) clarifies that the requirement to destroy restricted records applies to records that
relate to an interception authorised by a CSSO warrant that was issued for the purpose of
monitoring compliance with a CSSO, and executed after the CSSO was made but before it
was served on the subject.
Item 111 At the end of subsection 81A(2)
617. This item makes a consequential amendment to subsection 81A(2). It inserts new
paragraph (i) into this subsection to reflect the introduction of Part 9.10 warrants.
618. In the case of Part 9.10 warrants, new paragraph 81A(2)(i) provides that the
Secretary of the Department is to cause to be recorded in the General Register particulars
of the name of the person to whom the relevant CSSO or application relates.
Item 112 Item 107 - At the end of subsection 81C(2) (before the note)
619. This item makes a consequential amendment to subsection 81C(2). It inserts new
paragraph (i) into this subsection to reflect the introduction of Part 9.10 warrants.
620. In the case of Part 9.10 warrants, new paragraph 81C(2)(i) provides that the
Secretary of the Department is to cause to be recorded in the Special Register particulars
of the name of the person to whom the relevant CSSO or application relates.
Item 113 Subsections 83(1) and (2)
621. This item would insert '79AB,' after '79AA,' in subsections 83(1) and (2).
622. The effect of these amendments would be to expand the Ombudsman's
obligations under subsection 83(1) to periodically inspect the records of each
Commonwealth agency in order to ascertain compliance with certain provisions, to
include ascertaining the extent of agencies' compliance with the requirements in new
79AB in relation to destruction of restricted records. This ensures appropriate independent
compliance monitoring occurs in relation to these important requirements.
Item 114 Subsection 83(3)
623. This item amends subsection 83(3) by inserting 'or subsection 59C(2) (about Part
9.10 warrants)' after 'Part 5.3 warrants'.
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624. The effect of this addition is that Ombudsman may inspect a Commonwealth
agency's records in order to ascertain the extent to which officers of the agency have
complied during any period with the conditions, restrictions and provisions mentioned
in subsection 59B(2) about Part 9.10 warrants if the chief officer of the agency notifies
the Ombudsman under that subsection of a contravention of any of those conditions,
restrictions or provisions; and the contravention occurred in that period. This ensures there
is appropriate accountability in relation to contraventions of Part 9.10 warrants.
Item 115 Subsection 85(3)
625. Item 110 inserts '79AB' into subsection 85(3) after '79AA'.
626. The effect of this amendment is that the Ombudsman may not report on
contraventions of section 79AB, even in circumstances where, as a result of an inspection
of the agency's records under Part 2-7 - Keeping and inspecting of interception records -
the Ombudsman is of the opinion that an officer of the agency has contravened this
section.
627. While it is appropriate that the Ombudsman has power to inspect and oversight
agencies' records, including in relation to contraventions of section 79AB, it would not be
appropriate for the Ombudsman to report on such contraventions as this could compromise
the security of the intercepted information that was the subject of the contravention, and
adversely impact an agency's ability to conduct covert operations in the future.
Item 116 After section 85A
Section 85B - Annual report may cover notified breaches in relation to Part 9.10 warrants
628. This item introduces new section 85B which provides that the Ombudsman can
report on contraventions of Part 9.10 warrants of which it has been notified, if it does not
conduct an inspection in relation to a period during which the contravention has occurred
(subsection 85(1)).
629. The note to section 85B clarifies that if the Ombudsman conducts an inspection,
its report must include matters relating to the inspection. It directs the reader to subsection
84(1) for information about these matters. The report may include other information about
contraventions of the TIA Act. The note directs the reader to section 85 for further details
about this information.
630. Subsections 85(2) and (3) respectively provide that it does not matter whether the
Ombudsman is notified of the contravention before, during or after the financial year to
which the annual report relates, and the Ombudsman is not limited in what it can include
in a report prepared under sections 84 or 85, by the matters in subsection 85B(1).
Item 117 Subsection 103B(2)
631. This item inserts 'or Part 9.10 information' after 'Part 5.3 information' in
subsection 103B(2).
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632. The effect of this amendment is that, under subsection 103B(2), the chief officer
of a Commonwealth agency or the chief officer of an eligible authority of a State must
advise the Minister not to include the information in the Minister's report, which is tabled
in Parliament, if the chief officer is satisfied that the information is Part 9.10 information.
633. The reason for this amendment is because there may be limited number of CSOs
at any given time. If agencies were required to contemporaneously report on the number of
warrants issued with respect to persons subject to CSOs, and only a limited number of
persons are subject to CSOs at that time, annual reporting may effectively reveal that a
particular person who is subject to a CSO is or is not also subject to covert surveillance.
634. The ability of a person to determine, or to speculate with a degree of certainty,
whether they are, or are not, likely subject to surveillance may be further enhanced if the
relevant order contains particular conditions that are particularly amenable to monitoring
by way of a surveillance device. This would undermine the purpose and effectiveness of
such warrants, by enabling and incentivising persons to either adopt counter-measures to
avoid or reduce the effectiveness of covert surveillance (if the person determines they are,
or are likely to be, under surveillance), or to breach the terms of the order.
Item 118 Subsection 103B(3)
635. This item inserts 'or Part 9.10 information (as the case may be)' after 'Part 5.3
information' in subsection 103B(3).
636. The effect of this amendment is that, pursuant to subsection 103B, the Minister
can act on the advice of the chief officer of the agency and not include Part 9.10
information in a Ministerial report.
637. If this is the case, there remains a positive obligation on the chief officer of the
agency to reconsider whether the information Part 9.10 information, and advise the
Minister to include the information in their next report if the chief officer is satisfied that it
would no longer be reasonable to draw the inferences set out in the definition of Part 9.10
information (see below at item 116) from the information.
Item 119 Paragraphs 103B(4)(a) and (b)
638. This item inserts 'or Part 9.10 information (as the case may be)' after 'Part 5.3
information' after paragraphs 103B(4)(a) and (b).
639. This amendment would mean that, the chief officer of an agency must reconsider
previous advice to defer the publication of Part 9.10 information to determine whether the
information should be included in the next Ministerial report. This item creates a record
keeping obligation in relation to that reconsideration by the chief officer where in the
opinion of the chief officer the information remains 'Part 9.10 information' for the
purposes of section 103B.
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Item 120 Subsection 103B(5)
640. This item inserts or Part 9.10 information (as the case may be)' after 'Part 5.3
information' in subsection 103B(5).
641. This amendment would mean that if the Minister is satisfied, on the advice of the
chief officer, that the information is not Part 9.10 information, the Minister must notify the
chief officer in writing and include the information in the next Ministerial report. This
amendment ensures that information is not withheld from a report unless necessary.
Item 121 Subsection 103B(6)
642. This item defines Part 9.10 information for the purposes of section 103B.
643. Part 9.10 information means information that, if made public, could reasonably
be expected to enable a reasonable person to conclude that:
• a Part 9.10 warrant is likely to be, or is not likely to be, in force in relation to a
telecommunications service used, or likely to be used, by a particular person;
or
• a Part 9.10 warrant is likely to be, or is not likely to be, in force in relation to a
particular person.
Item 122 At the end of the heading to section 139B
644. This item amends the heading of section 139B to read 'Dealing for purposes
relating to Part 5.3 orders or Part 9.10 orders'.
Item 123 At the end of subsection 139B(2)
645. This item introduces new paragraph 139B(2)(c), which has the effect that the
purposes for which an officer or staff member of a criminal law-enforcement agency or
an eligible Commonwealth authority may communicate to another person, make use of, or
make a record of lawfully accessed information (other than foreign
intelligence information), preservation notice information and stored communications
warrant information include purposes connected with 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 Division 395 of the Criminal Code.
646. This amendment is necessary because, under a telecommunications interception
warrant, agencies are able to lawfully access stored communications. Accordingly, this
amendment allows agencies to use, communicate or record this information in relation to
CSOs.
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Item 124 After subparagraph 180D(2)(b)(ia)
647. This item introduces new subparagraph 180D(2)(b)(ib), which provides that an
authorised officer may authorise the disclose of information in the case of a disclosure to
an enforcement agency if they are satisfied that the disclosure is reasonable for the
purpose of Division 395 of the Criminal Code. This ensures that where information is
available that can support the objectives of the community safety order scheme, that
information can be appropriately disclosed for that purpose.
Item 125 After subparagraph 180D(2)(c)(ia)
648. This item introduces new subparagraph 180D(2)(c)(ib) which provides that an
authorised officer may authorise the disclose of information or documents in the case of a
use by the Australian Federal Police if they are satisfied that the disclosure is reasonable
for the purpose of Division 395 of the Criminal Code. This ensures that where information
is available that can support the objectives of the community safety order scheme, that
information can be appropriately disclosed for that purpose.
Item 126 After subparagraph 181B(3)(b)(iia)
649. This item introduces new subparagraph 181B(3)(b)(iib) which makes it a defence
to the offences in subsections 181(1) and (2) for the unauthorised disclosure of
information and documents respectively, where the disclosure is reasonably necessary for
the purpose of Division 395 of the Criminal Code. This ensures that where information is
available that can support the objectives of the community safety order scheme, that
information can be appropriately disclosed for that purpose.
Item 127 After subparagraph 181B(6)(b)(iaa)
650. This item introduces new subparagraph 181B(6)(b)(iaa) which makes it a defence
to the offences in subsections 181(4) and (5) for the unauthorised use of information and
documents respectively, where the use is reasonably necessary for the purpose of Division
395 of the Criminal Code. This ensures that where information is available that can
support the objectives of the community safety order scheme, that information can be
appropriately used for that purpose.
Item 128 After subparagraph 182(2)(a)(iiia)
651. This item introduces new subparagraph 182(2)(a)(iiib) which makes it a defence
to the offence in subsection 182(1) for the secondary disclosure of information or
documents, where the disclosure of non-missing person information is reasonably
necessary for the purpose of Division 395 of the Criminal Code. This ensures that where
information is available that can support the objectives of the community safety order
scheme, that information can be appropriately disclosed for that purpose.
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Item 129 After subparagraph 182(3)(a)(iia)
652. This item introduces new subparagraph 182(3)(a)(iib) which makes it a defence
to the offence in subsection 182(1) for the secondary use of information or documents,
where the use of non-missing person information is reasonably necessary for the purpose
of Division 395 of the Criminal Code. This ensures that where information is available
that can support the objectives of the community safety order scheme, that information can
be appropriately used for that purpose.
Item 130 After subparagraph 182B(b)(iva)
653. This item would insert new subparagraph 182B(b)(ivb) that would read 'for the
purpose of Division 395 of the Criminal Code (community safety orders)'.
654. This amendment would expand the defences available for the offences under
section 182A relating to journalist information warrants by providing that paragraphs
182A(1)(a) and (2)(a) do not apply to a disclosure or use of information or documents that
was reasonably necessary for the purpose of Division 395 of the Criminal Code.
655. This item introduces new subparagraph 182B(b)(ivb) which makes it a defence to
the offences in section 182A (1) and (2) for the unauthorised disclosure of information and
documents, where the disclosure is reasonably necessary for the purpose of Division 395
of the Criminal Code. This ensures that where information is available that can support the
objectives of the community safety order scheme, that information can be appropriately
disclosed for that purpose.
Part 2- Application provisions
Item 131 Application provision - Division 395
656. This item clarifies that Division 395 of the Criminal Code, as inserted by this
Schedule, applies in relation to a conviction for a serious violent or sexual offence, or a
serious foreign violent or sexual offence, that occurs before, on or after the
commencement of this item.
657. This means the Immigration Minister could apply for a CSO in relation to a
serious offender after the commencement of this Schedule, who has been convicted before
commencement. The offender would however also need to pose a present unacceptable
risk of committing a serious violent or sexual offence in order for the court to be satisfied
that a CSO made be made issued in relation to them.
Item 132 Application provision - declarations
658. This item provides that subsections 38B(3) and (5) of the TIA Act, as inserted by
this Schedule, apply in relation to a declaration that is in force on or after the
commencement of this item, whether the declaration was made before, on or after that
commencement. These provisions do not, by contrast apply to declarations made before
commencement that ceased to be in force before commencement.
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Item 133 Application provisions - information and documents
659. This item provides that the amendments to the TIA Act made by this Schedule
apply in relation to:
• the making of a record of, the disclosure of or the use of information on or after the
commencement of this item; and
• the disclosure or use of a document on or after the commencement of this item
• whether the information or document was obtained before, on or after that
commencement.
660. By contrast, the amendments would not apply to the making of a record of, the
disclosure of or the use of information before the commencement of this item; or the
disclosure or use of a document before the commencement of this item.
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ATTACHMENT A
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act
2011
Migration Amendment (Bridging Visa Conditions and Other Measures) Bill 2023
These amendments 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 Bill
The Migration Amendment (Bridging Visa Conditions and Other Measures) Bill 2023 (the
Bill) amends the Migration Act 1958 (the Migration Act) to ensure non-citizens -for
whom there is no real prospect of removal from Australia becoming practicable in the
reasonably foreseeable future and who are therefore not capable of being subject to
immigration detention under subsections 189(1) and 196(1) of the Migration Act
following the High Court's orders of 8 November 2023 in NZYQ v Minister for
Immigration, Citizenship and Multicultural Affairs (NZYQ) and who do not otherwise
hold a visa -are subject to appropriate visa conditions on a Subclass 070 (Bridging
(Removal Pending)) visa (BVR) granted to them following release.
The objective of the Bill is to keep the community safe, and to strengthen relevant
migration laws to respond to the decision in NZYQ v Minister for Immigration, Citizenship
and Multicultural Affairs [2023] HCA 37.
Government amendments
These Government amendments (SY101) include amendments to the Bill to:
• make amendments to the Criminal Code Act 1995 (Criminal Code) to introduce a
new Community Safety Order (CSO) scheme, to protect the community from the
risk of individuals who have committed serious violent or sexual offences;
• make amendments to the Migration Act 1958 (the Migration Act) to provide for the
grant of a Subclass 070 (Bridging (Removal Pending)) visa to non-citizens affected
by NZYQ who are the subject of a CSO under the Criminal Code;
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• makes amendments to the Crimes Act 1914, the Administrative Decisions (Judicial
Review) Act 1977, the Telecommunications (Interception and Access) Act 1979, the
Australian Security Intelligence Organisation Act 1979 and the Surveillance
Devices Act 2004, to extend the application of these Acts to the CSO scheme.
These Government amendments will further strengthen the measures in the Bill.
Amendments to the Migration Act
The amendments insert new section 76AA into the Migration Act, which to give effect to
the CSO scheme in relation to a NZYQ affected non-citizen holder of a BVR..
A visa held by a non-citizen, other than a criminal justice visa, ceases to be in effect if a
CSO is issued with respect to the non-citizen. Instead, the non-citizen is taken to have
been be granted a BVR, which comes into effect immediately after the CSO is made
(unless the non-citizen holds a criminal justice visa). A non-citizen whose criminal justice
visa ceases while a CSO is in effect is also taken to have been granted a BVR at the time
the criminal justice visa ceases to be in effect. The Minister cannot invite a non-citizen to
apply for another BVR or grant another BVR to a non-citizen while a CSO is in force in
relation to the non-citizen.
A BVR that is taken to be granted to a non-citizen under new section 76AA is generally
subject to the conditions prescribed by the regulations, but must not be subject to a
condition requiring the non-citizen to remain, between certain times of a day, at a
particular address for the non-citizen for the day, or a condition requiring the non-citizen
to wear a monitoring device.
If a condition of a BVR taken to be granted under section 76AA is inconsistent, in whole
or in part, with any of the conditions on a CSSO (other than a CSSO which is suspended),
then the BVR is taken not to be subject to that condition to the extent of any inconsistency.
Similarly, if a non-citizen is unable to comply with a condition of the BVR only because a
CSDO (other than a CSDO which is suspended) is in force in relation to the non-citizen at
that time, the BVR is taken not to be subject to that condition. The purpose is to ensure
that the visa conditions on a BVR taken to be granted to a non-citizen under section 76AA
are not inconsistent with the requirements of a CSSO or CSDO.
Amendments to the Criminal Code
The amendments to the Bill will amend the Criminal Code to introduce a new CSO
scheme, to protect the community from the risk of individuals who have committed
serious violent or sexual offences.
The new CSO scheme will allow the Immigration Minister to apply to the Court for a
community safety detention order (CSDO) or community safety supervision order (CSSO)
in relation to non-citizens who have no real prospect of removal from Australia becoming
practicable in the reasonably foreseeable future. The Court is also required to be satisfied
that the offender poses an unacceptable risk of committing a serious violent or sexual
offence.
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For CSDOs, a Court may make an order if satisfied to a high degree of probability, on the
basis of admissible evidence, that the offender poses an unacceptable risk of committing a
serious violent or sexual offence. The Court must also be satisfied that there is no less
restrictive measure, such as a CSSO or visa conditions, available that would be effective in
preventing the unacceptable risk.
For CSSOs, a Court may make an order if satisfied, on the balance of probabilities and on
the basis of admissible evidence, that the offender poses an unacceptable risk of
committing a serious violent or sexual offence. The Court has the ability to consider a
broad range of conditions to address the specific risks posed by the person. This includes
restrictions on the person's movement, residence, communication and use of technology,
and employment and education. It is necessary and appropriate that the Courts have
flexibility to adapt CSSO conditions to each offender in order to maintain compliance,
proportionality and primarily the safety of the community. The Court must be satisfied
that each of the conditions and the combined effect of the conditions is reasonably
necessary, and reasonably appropriate and adapted, for the purpose of protecting the
community from that unacceptable risk.
The Bill creates offences for contravening a CSSO condition, which carry a mandatory
minimum of one-year imprisonment, and a maximum penalty of five years' imprisonment.
The penalties provide an effective deterrent to the commission of such an offence and
reflects the significant risk that the offenders may pose to the community.
The amendments incorporate a number of safeguards to ensure there are appropriate
checks and balance on this extraordinary scheme, including:
• The Immigration Minister has a number of specific disclosure obligations. This
includes ensuring that the Court is provided with a statement of any facts that the
Immigration Minister is aware of that could support a finding that the order should
not be made;
• In making a CSDO, the Court must be satisfied that there is no less restrictive
measure that would be appropriate in mitigating the risk posed by the non-citizen;
• A CSO must be reviewed by the Court at least annually, or earlier if the non-citizen
or Immigration Minister apply for a review;
• The Court must consider any report from a relevant expert on the risk that the non-
citizen poses, their participation in any treatment or rehabilitation programs, and
their history of prior convictions for serious violent or sexual offences; and
• The Immigration Minister must report annually to the Parliament about the
operation of the CSO scheme.
This Bill also makes amendments to the Crimes Act 1914, the Administrative Decisions
(Judicial Review) Act 1977, the Telecommunications (Interception and Access) Act 1979
(TIA Act), the Migration Act, the Australian Security Intelligence Organisation Act 1979
and the Surveillance Devices Act 2004 (SD Act), to extend the application of these Acts to
the CSO scheme in order to give effect to the scheme.
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Amendments to the Surveillance Devices Act
The SD Act regulates the use of surveillance devices and establishes procedures for law
enforcement officers to obtain surveillance device warrants for certain purposes. The
surveillance and monitoring powers that will be extended to apply to CSOs include
surveillance device warrants and computer access warrants. Less intrusive surveillance
devices that may be used without a warrant will only be extended in relation to CSSOs.
The amendments to the Bill will allow law enforcement agencies to:
• obtain surveillance device warrants to monitor serious offenders who are subject to
CSSOs,
• obtain surveillance device warrants to assist in determining whether to make an
application for a CSO (also referred to as a 'Part 9.10 order'),
• obtain computer access warrants to monitor serious offenders who are subject to
CSSOs,
• obtain computer access warrants to assist in determining whether to make an
application for a CSO, and
• use less intrusive surveillance devices without a warrant to monitor serious
offenders who are subject to CSSOs.
It is imperative that law enforcement agencies have adequate powers to monitor a serious
offender's compliance with the conditions of a CSSO. Without sufficient powers to
monitor compliance, community safety may be put at risk if the person does not comply
with the conditions of the order and breaches go undetected. Furthermore, the knowledge
that law enforcement is able to use its powers to actively monitor compliance with an
order provides a strong disincentive to a person to breach the conditions of their order.
This enhances the effectiveness of the CSSOs.
It is also imperative that law enforcement agencies have adequate powers to determine
whether to make an application for a CSO. Without sufficient powers to collect
information that would determine whether it is necessary for the safety of the community
to make a CSO application, and without sufficient evidence to support that application,
community safety may be put at risk if the decision to make an application is not able to
be made or supported.
The amendments to the Bill will also amend the SD Act to allow protected information
(which is broadly information obtained under a warrant or surveillance devices used
without a warrant) to be used in a range of circumstances, including to determine whether
the relevant order has been complied with. The power to use surveillance devices for
monitoring purposes will remain a covert power.
Amendments to the TIA Act
The TIA Act confers a range of investigatory powers on law enforcement and other
agencies. The amendments extend the application of the TIA Act to support the
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monitoring of compliance with CSOs, including by allowing agencies to apply for
telecommunications services warrants, named person warrants and warrants for entry onto
premises for this purpose.
It is imperative that law enforcement agencies have adequate powers to monitor a person's
compliance with the conditions of a CSO. Without sufficient powers to monitor
compliance, community safety may be placed at risk if the person does not comply with
the conditions of the order and breaches go undetected. Furthermore, the knowledge that
law enforcement is able to use its powers to actively monitor compliance with an order
provides a strong disincentive to a person to breach the conditions of their order. This
enhances the effectiveness of the CSO. The evidence obtained through monitoring will
also assist in supporting the courts to more closely align the order with the person's
evolving level of risk.
Human rights implications
This Bill engages the following rights:
• 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 to equality and non-discrimination in Articles 2 and 26 of the ICCPR and
Article 2 of the International Covenant on Economic, Social and Cultural Rights
(ICESCR)
• the right to freedom from arbitrary or unlawful interference with privacy in Article
17 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 a fair trial and fair hearing, and minimum guarantees in criminal
proceedings, under Article 14 of the ICCPR
• the prohibition on the retrospective operation of criminal laws under Article 15 of
the ICCPR
• the right to freedom of expression in Article 19 of the ICCPR
• the right to freedom of assembly and association in Article 22 of the ICCPR
• the right to work under Article 6 of ICESCR
• the right to education under Article 13 of ICESCR
Rights to life and security of the person in Articles 6 and 9 of the ICCPR
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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 in Article 6 also places a positive obligation on states to protect individuals from
unwarranted actions by private persons, such as violent or sexual offences against private
persons. The obligation to protect life requires the state to take preventative operational
measures to protect individuals whose safety may be compromised in particular
circumstances.
The Bill promotes the right to life and the right to security of the person by providing the
community safety supervision and detention scheme to manage the risk posed by serious
violent or sexual non-citizen offenders within the NZYQ-affected cohort post-sentence. In
this regard, the scheme is targeted at non-citizen offenders within the NZYQ-affected
cohort who have been assessed by a Supreme Court of a State or Territory to pose an
unacceptable risk of committing a serious violent or sexual offence, which includes
offences causing death and serious harm.
Right to freedom from arbitrary detention and right to liberty under Article 9 of the
ICCPR
Article 9(1) of the ICCPR states:
Everyone has the right to liberty and security of person. No one shall be subjected
to arbitrary arrest or detention. No one shall be deprived of his liberty except on
such grounds and in accordance with such procedure as are established by law.
In this regard, Article 9(1) regulates, rather than prohibits, detention - it is only 'arbitrary'
detention that is prohibited. 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 Bill would allow a CSDO to be placed on a serious offender (as defined by the Bill) in
certain, limited circumstances. A CSDO would result in an offender being placed in
detention. The Bill also creates offences relating to non-compliance with CSSO, which
carry penalties of imprisonment. The Bill therefore engages Article 9 of the ICCPR as the
effect of the CSDO, as well as the effect of non-compliance with a CSSO is detention.
Deprived of liberty on such grounds and in accordance with such procedures as are
established by law
Detention as a result of the CSDO, as well punishment for the offences relating to non-
compliance with CSDO, is authorised by, and operates in accordance with, the procedures
prescribed in the Bill. Accordingly, it complies with the requirement in Article 9(1) that
deprivation of liberty not occur except in accordance with grounds and procedures
prescribed by law.
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The right to freedom from arbitrary detention in Article 9(1) of the ICCPR
In considering the appropriateness of post-sentence preventative detention regimes, the
United Nations Human Rights Committee, in its General Comment No. 35, has stated that:
[ ... ] to avoid arbitrariness, the additional detention must be justified by compelling
reasons arising from the gravity of the crimes committed and the likelihood of the
detainee's committing similar crimes in the future. States should only use such
detention as a last resort and regular periodic reviews by an independent body
must be assured to decide whether continued detention is justified. State parties
must exercise caution and provide appropriate guarantees in evaluating future
dangers. The conditions in such detention must be distinct from the conditions for
convicted prisoners serving a punitive sentence and must be aimed at the
detainee's rehabilitation and integration into society.
The preventative detention authorised by a CSDO therefore cannot be described as
'arbitrary'. The objective of the scheme (to protect the community from an unacceptable
risk of an offender committing a serious violent or sexual offence) is legitimate and
consistent with the purposes of the ICCPR. By detaining offenders within the NZYQ-
affected cohort who pose an unacceptable risk of committing serious violent or sexual
offences, the scheme protects and promotes the rights of people in the community,
including the most vulnerable members of Australian society, whose life and liberty would
be imperilled by the commission of serious offences.
The detention under a CSDO, as established by the Bill, is reasonably necessary and
proportionate to achieving this outcome of protecting the Australian community from an
unacceptable risk of the commission of serious violent and sexual offences. The scheme
provides that detention under a CSDO is a last resort where no less restrictive measure
would be sufficient to manage the risk posed. This is reflected in the stringent thresholds
of which a Supreme Court of a State or Territory must be satisfied before it may impose a
CSDO, as discussed further below.
The Bill includes numerous features designed to ensure that detention is not arbitrary,
including:
• Establishing processes by which a Court, when deciding an application for or
reviewing a CSDO, must have regard to a range of matters which are rationally
connected with the level of risk posed by the 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 offender.
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• Providing that, for an offender to be subject to a CSDO, a 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 violent or sexual offence. As
above, to assist the Court in making this decision, the Court must have regard to
evidence provided by an independent expert competent to assess the risk of the
offender committing a serious violent or sexual offence if they were in the community.
Both the offender and the Immigration Minister (or their respective legal
representative) may nominate a relevant expert or experts for the Court's
consideration. An example of an expert who may be appointed by the Court could be a
person with expertise psychology or psychiatry. The Court must have regard to the
expert's opinion when making its decision.
• Requiring that a Court can only make a CSDO if satisfied that there is no less
restrictive measure that would be effective in preventing the unacceptable risk posed
by the offender. An example of this is making a CSDO, as introduced by this Bill. A
CSSO may require an offender to participate in specified rehabilitation or intervention
programs or activities, or undertake counselling, subject to their consent. Further, a
Court must have regard to any treatment or rehabilitation program in which the
offender has had an opportunity to participate. The Court retains the discretion to
refuse to make either a CSDO or a CSSO if not satisfied that such an order is
necessary to protect the community from unacceptable risk of harm.
• Providing for annual review by requiring the Immigration Minister to apply to a
Supreme Court of a State for a review of a CSO (at the end of the period of 12 months
after the order began to be in force, or 12 months after the most recent review ended).
If an application for review is not made, the CSO ceases to be in force.
• Recognising that the offender is not serving a sentence of imprisonment by
providing that, when subject to a CSDO, he or she be housed separately from persons
who are in prison for the purposes of serving a sentence of imprisonment, except in
certain circumstances such as where it is reasonably necessary for the purposes of
rehabilitation, treatment, work, education, general socialisation or other group
activities, it is necessary for the good order of the prison, for the safety and protection
of the community, or where the offender elects otherwise.
Additional safeguards contained in the provisions provide that:
• Only a limited class of persons can be subject to the community safety detention
scheme and the characteristic used to define that class (conviction for a previous
violent or sexual offence) is rationally connected with the scheme's protective
purpose.
• Only the Immigration Minister, or their legal representative, can apply for a
CSDO.
• The offender must be provided with certain documents to enable him or her to
prepare for the Court's hearing of an application for a CSDO.
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• The power to make a CSDO lies with an independent judicial authority (the
Supreme Court of the relevant State or Territory) which will apply the rules of
evidence and procedure applicable in civil matters.
• The offender can adduce evidence and make submissions in court proceedings.
• The Immigration Minister bears the onus of satisfying the Court that a CDSO
should be made and, if reviewed, that a CSDO should be affirmed.
• The period of detention authorised by a CSDO must be limited to a period that is
reasonably necessary to prevent the unacceptable risk, and must not exceed three
years.
• The Court must provide reasons for its decisions in an application for a CSDO or
in a review of a CSDO, and these decisions can be appealed.
These safeguards ensure that any detention as a result of a court making a CSDO, or as a
consequence of non-compliance with a CSSO, is not arbitrary, and is necessary,
reasonable and proportionate to protect community safety.
Right to equality and non-discrimination
Article 2(1) of the ICCPR states:
Each State Party to the present Covenant undertakes to respect and to ensure to all
individuals within its territory and subject to its jurisdiction the rights recognized
in the present Covenant, without distinction of any kind, such as race, colour, sex,
language, religion, political or other opinion, national or social origin, property,
birth or other status.
Article 26 of the ICCPR states:
All persons are equal before the law and are entitled without any discrimination to
the equal protection of the law. In this respect, the law shall prohibit any
discrimination and guarantee to all persons equal and effective protection against
discrimination on any ground such as race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth or other status.
Article 2(2) of the ICESCR states:
The States Parties to the present Covenant undertake to guarantee that the rights
enunciated in the present Covenant will be exercised without discrimination of any
kind as to race, colour, sex, language, religion, political or other opinion, national
or social origin, property, birth or other status.
In its General Comment 18, the UN Human Rights Committee (UNHRC) stated that:
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The Committee observes that not every differentiation of treatment will constitute
discrimination, if the criteria for such differentiation are reasonable and objective
and if the aim is to achieve a purpose which is legitimate under the [ICCPR].
Similarly, in its General Comment on Article 2 of the ICESCR, the UN Committee on
Economic, Social and Cultural Rights has stated (at 13) that:
Differential treatment based on prohibited grounds will be viewed as
discriminatory unless the justification for differentiation is reasonable and
objective. This will include an assessment as to whether the aim and effects of the
measures or omissions are legitimate, compatible with the nature of the [ICESCR]
rights and solely for the purpose of promoting the general welfare in a democratic
society. In addition, there must be a clear and reasonable relationship of
proportionality between the aim sought to be realized and the measures or
omissions and their effects.
Neither the ICCPR nor the ICESCR give a right for non-citizens to enter or stay in
Australia. The UNHRC, in its General Comment 15 on the position of aliens under the
ICCPR, stated that:
The [ICCPR] does not recognize the right of aliens to enter or reside in the
territory of a State party. It is in principle a matter for the State to decide who it
will admit to its territory. However, in certain circumstances an alien may enjoy
the protection of the [ICCPR] even in relation to entry or residence, for example,
when considerations of non-discrimination, prohibition of inhuman treatment and
respect for family life arise.
Consent for entry may be given subject to conditions relating, for example, to
movement, residence and employment. A State may also impose general conditions
upon an alien who is in transit. However, once aliens are allowed to enter the
territory of a State party they are entitled to the rights set out in the [ICCPR].
As such, Australia is able to set requirements for the entry and stay of non-citizens in
Australia, and does so on the basis of reasonable and objective criteria that serves a
legitimate objective.
The amendments made by the Bill will allow for CSDO and CSSO to be imposed on
members of the NZYQ-affected cohort. The measures introduced by these amendments
would not apply to other visa holders or to Australian citizens who have previously
offended.
Members of the NZYQ-affected cohort have no substantive visa to remain in Australia,
having had their visa applications refused, or a visa cancelled, in most cases on character
grounds, and who have not previously been granted a bridging visa due to safety risks they
may pose to the Australian community. Consequently, the Government considers these
measures to be proportionate to the particular circumstances of the NZYQ-affected cohort
and aimed at the legitimate objective of protecting community safety.
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There is a risk of incompatibility with rights relating to discrimination in circumstances
where Australian citizen or non-NZYQ-affected non-citizen offenders of serious violent or
sexual offences would not be subjected to the same CSDO and CSSO that are established
by this Bill. The Government notes that similar detention and supervision schemes exist
under state and territory laws in relation to serious offenders and/or sexual offenders
which apply to Australian offenders. These include the schemes established under:
• Crimes (High Risk Offenders) Act 2006 (NSW);
• Terrorism (High Risk Offenders) Act 2017 (NSW);
• Serious Offenders Act 2018 (Victoria);
• Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld);
• High Risk Serious Offenders Act 2020 (WA);
• Criminal Law (High Risk Offenders) Act 2015 (SA); and
• Serious Sex Offenders Act 2013 (NT).
These Acts contain comparative, though not identical, schemes for detention or
supervision of serious sexual and/or violent Australian citizen offenders. The Government
considers the existence of these comparative schemes demonstrates that such measures are
necessary, reasonable and proportionate given the risks posed to community safety by
sexual and/or violent non-citizen offenders within the NZYQ-affected. However, in
circumstances where the Immigration Minister applies for a CSSO and a Supreme Court
of a State or Territory decides not to grant such an order, the Bridging (Removal Pending)
visa (BVR) conditions applicable to the individual the subject of the failed order
(including mandatory conditions such as electronic monitoring and the imposition of a
curfew) would remain in force unless and until the Immigration Minister decides to
remove those conditions. Similar conditions would not apply to a citizen offender the
subject of a failed application for a supervision order under a State or Territory scheme.
The right to freedom from arbitrary or unlawful interference with privacy in Article
17 of the ICCPR
Article 17(1) of the ICCPR states:
No one shall be subjected to arbitrary or unlawful interference with his privacy,
family, home or correspondence, nor to unlawful attacks on his honour and
reputation.
Pursuant to Article 17(1) of the ICCPR, any interference with an individual's privacy must
have a lawful basis. In addition to requiring a lawful basis for limitation on the right to
privacy, Article 17 prohibits arbitrary interference with privacy. Interference which is
lawful may nonetheless be arbitrary where that interference is not in accordance with the
objectives of the ICCPR and is not reasonable in the circumstances.
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There are a range of possible conditions which a Court may impose as part of a CSSO that
would engage the right to privacy, including that the offender be subject to electronic
monitoring, provide personal information to authorities, submit to drug and/or alcohol
testing, allow himself or herself 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.
These limitations are reasonable and necessary as they are aimed at protecting community
safety and the most vulnerable members of the community. The measures are
proportionate to achieving that outcome. The conditions which may be imposed by a
Court are intended to be tailored to address the specific risk the individual poses of
committing further offences. Before imposing a condition that may restrict an offender's
privacy, the Court 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 further serious violent or sexual offence.
There are also appropriate safeguards on the extent to which a specified authority may
exercise powers or otherwise do things in relation to CSSO conditions, including the
threshold which provides that monitoring and compliance powers may only be used where
it is reasonably necessary to do so in order to give effect to the order or to facilitate or
monitor compliance with the order. There are also safeguards in the use and treatment of
photographs and fingerprints.
New section 395.44 introduces powers for the Immigration Minister to request that a
prescribed person give information to the Immigration Minister, including personal
information, that they reasonably believe is relevant to the administration or execution of
CSOs. The Immigration Minister may disclose information to a prescribed person if they
reasonably believe the disclosure to be necessary to enable the person to exercise their
powers or perform their functions or duties. New section 395.45 introduces powers for an
Australian Federal Police member to disclose information to certain specified persons for
the purpose of facilitating the performance of any functions or exercise any powers in
relation to CSSOs.
Collecting, using and disclosing personal information limits the right to privacy. However,
the limitation as a result of these new collection and disclosure powers is reasonable,
necessary and proportionate where it is necessary for the purposes of community safety
proceedings.
To the extent that the measures may limit and individuals right to privacy, those
limitations are necessary, reasonable and proportionate to achieve a legitimate objective,
being the safeguarding of community safety.
The Bill also introduces amendments to the TIA Act and the SD Act. The amendments to
the TIA Act enable application to be made for telecommunications intercept warrants in
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order to determine whether a CSSO is being complied with. These amendments introduce
measures that would constitute a limitation on the right to privacy.
In deciding whether or not to grant a warrant in relation to a CSSO, a Judge or nominated
AAT member must have regard to a range of factors, including:
• The extent to which the privacy of any person or persons would be interfered with
by intercepting communications made to or from the service subject to a warrant.
• The extent to which information gained through the interception would be likely to
assist in achieving a Part 9.10 object - being protection of the community from the
unacceptable risk of serious offender committing a serious violent or sexual offence -
or determining whether a CSSO is being complied with.
• The extent to which less rights restrictive measures have been used by, or are
available to, the agency seeking the warrant.
• The extent of the risk posed by the person in relation to whom the CSSO is in
force.
The amendments to the TIA Act also provide for Ombudsman oversight and requires the
destruction of information obtained through an interception which occurred when the
CSSO had been made but had not yet entered into force. These safeguards ensure that the
limitation on the right to privacy is reasonable, necessary and proportionate to the
achievement of a legitimate objective, being enforcement of compliance with CSSO.
The amendments to the SD Act enable law enforcement officers to obtain warrants for the
installation and use of surveillance devices or for access to data held in computers or to
obtain tracking device authorisation in circumstances where a CSSO in in force and the
use of the device or the access to the data would be likely to substantially assist in
determining whether the CSSO has been, or is being, complied with. These amendments
introduce measures that would constitute a limitation on the right to privacy.
In determining whether a surveillance device warrant should be issued, the eligible
Judge or nominated AAT member must have regard to:
• The extent to which the privacy of any person is likely to be affected.
• The existence of any alternative means of obtaining the evidence or information
sought to be obtained.
• The likely value of the information sought to be obtained in achieving a Part 9.10
object - being protection of the community from the unacceptable risk of serious
offender committing a serious violent or sexual offence - or determining whether the
CSSO has been, or is being, complied with.
• Whether the use of a surveillance device would be the means of obtaining the
evidence or information sought to be obtained that is likely to have the least
interference with any person's privacy.
• The possibility that the person the subject of the intended surveillance has
committed, is committing, or will commit, a serious violent or sexual offence.
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• The possibility that the person the subject of the intended surveillance has
contravened, is contravening, or will contravene the CSSO.
• Any previous surveillance device warrant sought or issued on the basis of a CSSO
that is or was in force in relation to that person.
In determining whether a computer access warrant should be issued, the eligible
Judge or nominated AAT member must have regard to:
• The extent to which the privacy of any person is likely to be affected.
• The existence of any alternative means of obtaining the evidence or information
sought to be obtained.
• The likely value of the information sought to be obtained in achieving a Part 9.10
object - being protection of the community from the unacceptable risk of serious
offender committing a serious violent or sexual offence - or determining whether the
CSSO has been, or is being, complied with.
• Whether the access would be the means of obtaining the evidence or information
sought to be obtained that is likely to have the least interference with any person's
privacy.
• The possibility that the person the subject of the intended access has committed, is
committing, or will commit, a serious violent or sexual offence.
• The possibility that the person the subject of the intended access has contravened,
is contravening, or will contravene the CSSO.
• Any previous computer access warrant sought or issued on the basis of a CSSO
that is or was in force in relation to that person.
With regard to a tracking device authorisation, such authorisation may be provided if the
use of the tracking device is for the purpose of determining whether the CSSO has been, or
is being, complied with. The use, installation or retrieval of a tracking device cannot be
authorised if it would involve the entry onto premises without permission or an
interference with the interior of a vehicle without permission.
These safeguards ensure that the limitation on the right to privacy is reasonable, necessary
and proportionate to the achievement of a legitimate objective, being enforcement of
compliance with CSSO.
Right of persons deprived of their liberty to be treated with humanity and with
respect for the inherent dignity of the human person
Article 10 of the ICCPR relevantly states:
1) All persons deprived of their liberty shall be treated with humanity and
with respect for the inherent dignity of the human person.
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2)(a) Accused persons shall, save in exceptional circumstances, be segregated
from convicted persons and shall be subject to separate treatment appropriate to
their status as unconvicted persons.
The obligation in Article 10(2)(a) does not apply directly to the community safety
detention scheme as the scheme does not involve the detention of 'accused persons'. The
grounds for detention under a CSDO are not connected with the laying of or determination
of a criminal charge.
However, there are minimum standards of treatment in the Bill that must be afforded to an
offender who is detained under a CSDO that would satisfy the standards set out in Article
10(2)(a). This includes that the offender 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 and that, subject to
certain exceptions, the offender must not be accommodated or detained in the same area or
unit of the prison as persons who are in prison for the purpose of serving sentences of
imprisonment. Existing rights and protections applicable to persons in detention will also
continue to apply.
By mandating appropriate standards of treatment and accommodation arrangements, the
scheme promotes the rights of non-citizen offenders within the NZYQ-affected cohort
detained under the scheme to be treated with humanity and respect for the inherent dignity
of the human person. While the scheme permits deviation from these standards, it does so
only where necessary to protect the safety or rights of others, or to reflect the offender's
wishes. To the extent that the scheme permits limitations on the rights of non-citizen
offenders within the NZYQ-affected cohort under Article 10(1), the limitations are
reasonable, necessary and proportionate to achieve legitimate objectives of the scheme.
Right to freedom of movement
Article 12 of the ICCPR relevantly states:
1) Everyone lawfully within the territory of a State shall, within that territory,
have the right to liberty of movement and freedom to choose his residence.
...
3) The above-mentioned rights shall not be subject to any restrictions except
those which are provided by law, are necessary to protect national security, public
order (ordre public), public health or morals or the rights and freedoms of others,
and are consistent with the other rights recognised in the present Covenant.
The Bill establishes a number of conditions that the Court may impose as part of a CSSO.
Potential conditions include requiring an offender to reside at a specified premises or
requiring that the offender not leave Australia, or the State or Territory in which the
offender's residence is located. A Court may also impose a condition that an offender
remain at a specified premises between specified times each day, or specified days, or a
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condition that an offender not be present at specified areas or places, or specified classes
of areas or places.
The imposition of any of the above conditions would restrict an offender's freedom of
movement, however, such restrictions are necessary to protect the community. Under the
proposed community safety supervision scheme, a Court would decide which conditions
or combination of conditions are appropriate to address the risk posed by a particular
person. Before imposing any condition as part of a CSSO, a Court must be satisfied on the
balance of probabilities that the condition, or combination of 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 or violent
offence.
The offender (or their legal representative) will be able to make submissions to the Court
in relation to the proposed conditions. These safeguards, particularly the independent role
of the judiciary, will 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
community safety.
Right to a fair trial and fair hearing, and minimum guarantees in criminal
proceedings
Article 14(1) of the ICCPR relevantly states that:
All persons shall be equal before the courts and tribunals. In the determination of
any criminal charge against him, or of his 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.
Article 14, paragraphs (2)-(7) provides the minimum guarantees which apply to criminal
proceedings, including the right not to be tried or punished again for an offence for which
one has already been finally convicted in accordance with the law and penal procedure of
each country.
Community safety orders
The Bill requires that CSO 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 offender can adduce evidence and make submissions, and he or she must
be provided with certain documents, including the application for a CSSO or CSDO. The
offender has the same ability as the Immigration Minister to seek a variation of a CSSO or
review of a CSSO or CSDO, and can appeal decisions made by the Court.
The Bill provides that the Immigration Minister 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
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that a CSDO or CSSO should not be made. An application by the Immigration Minister
for a CSDO or CSSO 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, subject to any claims of public
interest immunity. If an offender is subject to an order under a law of a State or Territory
that is equivalent to a CSO, a copy of that order must also be provided.
When hearing an application for, or reviewing, a CSO, the Court has the power to appoint
one or more experts to assess the risk of the offender committing a serious violent or
sexual offence. In addition, the Immigration Minister may direct persons who are eligible
for a CSO, or presently subject to a CSO, to be subject to an expert assessment of the risk
of the offender committing a serious violent or sexual offence. The Court is to have regard
to the expert's report and the level of the offender's participation in the assessment when
making a CSO. Information or answers given by the offender at an assessment are not
admissible in evidence against the offender in criminal or civil proceedings, except any
proceedings in relation to the CSOs (including appeals in relation to those proceedings).
The prohibitions on the use of the report avoid the offender having to decide between
participating in the assessment but potentially disclosing self-incriminating information,
and not participating in the assessment at all.
The Bill preserves an offender's right to access legal representation. Under the Bill, the
Court's ability to impose conditions by CSSO does not affect an offender's right to
contact, communicate or associate with the offender's lawyer, unless the offender's lawyer
is prescribed as a prohibited contact. In that case, the offender may contact, communicate
or associate with any other lawyer of their choosing. The Bill also ensures that any lawyer
representing the offender is able to access copies of an application for a CSO, an
application to review a CSO, or an application to vary CSSOs, made against the offender,
so that they can provide advice to, and represent the interests of, the offender.
Under the Bill, when the Court makes a decision in relation to a CSO, the Court must state
the reasons 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.
These provisions ensure that the offender, and the Court, have access to the information
needed in determining an application for a CSO. Consequently, subject to the limitations
permitted under Article 14(1), the provisions of the Bill protect the rights of non-citizen
offenders within the NZYQ-affected cohorts to a fair and public hearing by a competent,
independent and impartial tribunal established by law.
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 community
safety proceedings, which do not involve the determination of a criminal charge, being
civil, rather than criminal, in nature. Further, while the procedural protections contained in
Articles 14(2) and (3) would apply to criminal proceedings resulting from non-compliance
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with a CSSO, existing procedural protections applicable in Commonwealth criminal
proceedings would satisfy the requirements set out in the ICCPR.
Article 14(7) provides that:
No one shall be liable to be tried or punished again for an offence for which he has
already been finally convicted or acquitted in accordance with the law and penal
procedure of each country.
The Bill does not engage this right because the imposition of a CSO on an offender does
not constitute additional punishment for their prior offending - the CSO is protective
rather than punitive or retributive in nature. While prior commission of serious violent or
sexual offences make an offender eligible for the CSO regime, whether an order will be
imposed depends on the Court making an assessment that the offender poses an
unacceptable risk of committing further serious violent or sexual offences.
As well as being defined explicitly in the Object of the Bill, the scheme's protective
purpose is reflected in numerous features of the scheme including the grounds on which an
CSO may be made or affirmed; the matters to which the Court must have regard when
making or reviewing a CSO; and the requirement that conditions under a CSSO may only
be imposed for a period that is reasonably necessary to prevent the unacceptable risk. The
CSOs therefore do not further punish those convicted of serious violent or sexual offences
and Article 14(7) of the ICCPR is not engaged.
Article 14 also provides for the concept of 'equality of arms' in proceedings, which
requires that all parties to a proceeding have a reasonable opportunity to present their case
under conditions that do not disadvantage them as against other parties in the proceedings.
The Bill engages this right as certain information - that is, national security information
and public interest immunity information - may be excluded from the copies of an
application or materials provided to an offender. However, the exclusion of such
information is limited to specific circumstances that must be satisfied to the Court. The
exclusion of such information is appropriate with reference to the nature of the material
and the need to ensure national security and public safety.
Further where an application or material is required to be given to an offender and the
application or material contains terrorism material, child abuse material or abhorrent
violent material, the applicant may apply to the Court for an order in relation to the
manner in which the material is to be dealt with. This includes that the material be
provided to the offender's legal representative or be available for inspection by the
offender at specified premises. Ultimately, the mechanisms through which information
may be protected or disclosed are overseen by the courts, ensuring a proper safeguard in
relation to any limitations to the right to procedural fairness.
Offences relating to the non-compliance with a community safety supervision order
Article 14(5) of the ICCPR provides that:
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Everyone convicted of a crime shall have the right to his conviction and sentence
being reviewed by a higher tribunal according to law.
The amendments made by the Bill create criminal offences relating to non-compliance
with a CSSO. The offences carry a maximum penalty of 5 years imprisonment or 300
penalty units, or both. The purpose of the maximum penalty available for the offences is to
appropriately reflect the seriousness of these offences and the need to make clear that non-
compliance with CSSOs that are aimed at protecting community safety is viewed
seriously.
These offences carry a mandatory minimum sentence of 1-year imprisonment. There is a
risk that mandatory minimum sentencing is incompatible with the right to have a sentence
reviewed by a higher tribunal according to law under Article 14(5) of the ICCPR because
mandatory sentencing prevents judicial discretion in relation to the severity or correctness
of a minimum sentence.
The Government considers that these amendments are appropriate to the objectives of
protecting community safety.
Prohibition on the retrospective operation of criminal laws
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 when it was committed. Nor shall a heavier penalty
be imposed than the one that was applicable at the time when the criminal offence
was committed. If, subsequent to the commission of the offence, provision is made
by law for the imposition of the lighter penalty, the offender shall benefit thereby.
The Bill establishes a community safety detention scheme applicable to serious non-
citizen offenders within the NZYQ-affected cohort, defined as non-citizens for whom
there is no real prospect of removal from Australia becoming practicable in the reasonably
foreseeable future and who have been convicted of a serious violent or sexual offence. The
scheme will therefore apply to persons convicted of violent or sexual offences prior to the
enactment of the scheme. As outlined in the above discussion of Article 14, detention
under a CSDO does not constitute punishment. The detention of violent or sexual non-
citizen offenders within the NZYQ-affected cohort 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.
Right to freedom of expression
Article 19(2) of the ICCPR provides that:
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Everyone shall have the right to freedom of expression; this right shall include
freedom to seek, receive and impart information and ideas of all kinds, regardless
of frontiers, either orally, in writing or in print, in the form of art, or through any
other media of his choice.
Article 19(3) provides that this right may be subject to certain restrictions, but only such as
are provided by law and are necessary for respect of the right or reputations or others, for
the protection of national security or of public order, or of public health and morals.
The Bill engages this right as the 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. The Court may also impose conditions requiring
that the offender not access or use specified forms of telecommunications or other
technology (including the internet). This limitation of the right to freedom of expression in
this context seeks to protect the Australian community from the risk of the person who is
subject to the order committing a serious offence, and is therefore necessary for the
protection of the community. A person who is subject to CSSO has been assessed by the
Court as posing an unacceptable risk to community safety if the specified controls are not
put in place.
Before imposing a condition restricting an offender's freedom of expression under the
Bill, the Court 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 that the offender poses of committing a serious violent or sexual
offence. This is an important safeguard which ensures conditions will be imposed
consistently with Article 19 of the ICCPR.
Right to freedom of assembly and association
Article 22(1) of the ICCPR provides that:
Everyone shall have the right to freedom of association with others, including the
right to form and join trade unions for the protection of his interests.
Article 22(2) of the ICCPR provides that there may be no restrictions on this right other
than:
... those which are prescribed by law and which are necessary in a democratic
society in the interests of national security or public safety, public order (ordre
public), the protection of public health or morals or the protection of the rights
and freedoms of others. This article shall not prevent the imposition of lawful
restrictions on members of the armed forces and of the police in their exercise of
this right.
The Bill engages this right as a Supreme Court of a State or Territory may impose a
condition that an offender not communicate or associate with specified individuals or
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classes of individuals. However, this limitation of the right to freedom of association is
necessary in the interests of community safety.
An offender who is subject to CSSO has been assessed by a Court as posing an
unacceptable risk of committing a serious violent or sexual offence, meaning the offender
has been assessed as a risk to community safety. Accordingly, the restriction of an
offender's freedom of association is for a legitimate purpose.
Further, before imposing a condition restricting an offender's freedom of association, the
Court 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 violent or sexual offence. This is an
important safeguard which ensures conditions will be imposed consistently with Article 22
of the ICCPR.
The Bill also indirectly engages the right to freedom of association, to the extent that
individuals subject to a CSSO may suspect that their communications are being
monitored. This suspicion may cause them to restrict their communication or associations.
An individual subject to a CSSO has been assessed as posing an unacceptable risk of
committing a serious violent or sexual offence. This risk justifies this limited indirect
limitation on freedom of association for a limited number of specific convicted individuals
subject to CSSO in order to protect community safety.
Right to work and right to education
Article 6(1) of the ICESCR provides:
The States Parties to the present Covenant recognize the right to work, which
includes the right of everyone to the opportunity to gain his living by work which
he freely chooses or accepts, and will take appropriate steps to safeguard this
right.
Article 13(1) of the ICESCR relevantly provides:
The States Parties to the present Covenant recognize the right of everyone to
education ...
It provides that primary education shall be compulsory and available free to all; that
secondary education shall be made generally available and accessible to all; and that
higher education shall be made equally accessible to all.
To the extent that the conditions a Court may impose as part of a CSSO limit the type of
work that an offender may engage in, or limit the type of training or education that an
offender may access, the Bill engages Article 6 and Article 13.
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Article 4 of the ICESCR provides that States may subject economic, social and cultural
rights only to such limitations as are determined by law only in so far as this may be
compatible with the nature of these rights and solely for the purpose of promoting the
general welfare in a democratic society. Such limitations must be proportional, and must
be the least restrictive alternative where several types of limitations are available. Where
such limitations are permitted, they should be of limited duration and subject to review.
An offender who is subject to a CSSO has been assessed by a court as posing an
unacceptable risk of committing a serious violent or sexual offence, meaning the offender
is a risk to community safety. Limiting the type of work that an offender may engage in, or
limiting the type or training or education they may access, is therefore necessary for the
promotion of the general welfare of the Australian public.
Further, conditions imposed are restricted to the period of time during which an order is in
force, and are subject to annual review. The length a CSSO is limited to the period that the
Court is satisfied is reasonably necessary to prevent the unacceptable risk of the offender
committing a serious violent or sexual offence and cannot exceed three years. In addition,
before imposing a condition restricting an offender's right to work, the Court 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 violent or sexual offence.
These safeguards ensure that, to the extent that the Bill engages Article 6 and Article 13 of
the ICESCR, it is consistent with it and the limitations are reasonable, necessary and
proportionate in achieving a legitimate objective.
Conclusion
To the extent that the measures in this Bill limit human rights, they do so in order to
protect the Australian community.
The Honourable Andrew Giles MP
Minister for Immigration, Citizenship and Multicultural Affairs
145
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