Criminal Code Act 1995

Div 104 inserted by No 144 of 2005, s 3 and Sch 4 item 24, effective 15 December 2005. For review provisions, see note under definition of " advocate " in s 102.1.

Subdiv B inserted by No 144 of 2005, s 3 and Sch 4 item 24, effective 15 December 2005. For review provisions, see note under definition of " advocate " in s 102.1.

S 104.2(1) amended by No 31 of 2018, s 3 and Sch 2 item 114(2), by substituting " AFP Minister ' s " for " Attorney-General ' s " (wherever occurring), effective 11 May 2018. For transitional rules, see note under s 72.28 .

S 104.2(2) amended by No 31 of 2018, s 3 and Sch 2 item 114(2), by substituting " AFP Minister ' s " for " Attorney-General ' s " , effective 11 May 2018. For transitional rules, see note under s 72.28 .

S 104.2(2) amended by No 134 of 2014, s 3 and Sch 1 item 7, by inserting para (c) and (d), effective 9 January 2015.

S 104.2(2) amended by No 116 of 2014, s 3 and Sch 1 items 70 and 71, by substituting " suspects " for " considers " in para (a) and substituting para (b), effective 1 December 2014. Para (b) formerly read:

(b) suspects on reasonable grounds that the person has provided training to, or received training from, a listed terrorist organisation.

S 104.2(3) amended by No 31 of 2018, s 3 and Sch 2 items 114(2) and (3), by substituting " AFP Minister ' s " for " Attorney-General ' s " and " AFP Minister " for " Attorney-General " , effective 11 May 2018. For transitional rules, see note under s 72.28 .

S 104.2(3) amended by No 82 of 2016, s 3 and Sch 2 items 1 and 2, by substituting para (b) and (ba) for para (b) and substituting " 14 " for " 16 " in the note, effective 30 November 2016. Para (b) formerly read:

(b) information (if any) that the member has about the person ' s age; and

S 104.2(3) substituted by No 134 of 2014, s 3 and Sch 1 item 8, effective 9 January 2015. S 104.2(3) formerly read:

(3)
In seeking the Attorney-General ' s consent, the member must give the Attorney-General a draft request that includes:

(a) a draft of the interim control order to be requested; and

(b) the following:

(i) a statement of the facts relating to why the order should be made;

(ii) if the member is aware of any facts relating to why the order should not be made - a statement of those facts; and

(c) the following:

(i) an explanation as to why each of the obligations, prohibitions and restrictions should be imposed on the person;

(ii) if the member is aware of any facts relating to why any of those obligations, prohibitions or restrictions should not be imposed on the person - a statement of those facts; and

(d) the following:

(i) the outcomes and particulars of all previous requests for interim control orders (including the outcomes of the hearings to confirm the orders) in relation to the person;

(ii) the outcomes and particulars of all previous applications for variations of control orders made in relation to the person;

(iii) the outcomes of all previous applications for revocations of control orders made in relation to the person;

(iv) the outcomes and particulars of all previous applications for preventative detention orders in relation to the person;

(v) information (if any) that the member has about any periods for which the person has been detained under an order made under a corresponding State preventative detention law; and

(e) information (if any) that the member has about the person ' s age; and

(f) a summary of the grounds on which the order should be made.

Note 1:

An interim control order cannot be requested in relation to a person who is under 16 years of age (see section 104.28 .

Note 2:

The member might commit an offence if the draft request is false or misleading (see sections 137.1 and 137.2 ).

S 104.2(3A) substituted by No 134 of 2014, s 3 and Sch 1 item 8, effective 9 January 2015. S 104.2(3A) formerly read:

(3A)
To avoid doubt, paragraph (3)(f) does not require any information to be included in the summary if disclosure of that information is likely to prejudice national security (within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004 ).

S 104.2(4) amended by No 31 of 2018, s 3 and Sch 2 items 114(4) and (5), by substituting " AFP Minister ' s " for " Attorney-General ' s " and " AFP Minister " for " Attorney-General " , effective 11 May 2018. For transitional rules, see note under s 72.28 .

S 104.2(4) substituted by No 134 of 2014, s 3 and Sch 1 item 8, effective 9 January 2015. S 104.2(4) formerly read:

(4)
The Attorney-General ' s consent may be made subject to changes being made to the draft request (including the draft of the interim control order to be requested).

S 104.2(5) amended by No 131 of 2021, s 3 and Sch 1 item 6A, by substituting the note, effective 9 December 2021. The note formerly read:

Note:

An interim control order in relation to a person who is detained in custody does not begin to be in force until the person is released from custody (see paragraph 104.5(1)(d)).

S 104.2(5) amended by No 31 of 2018, s 3 and Sch 2 item 114(6), by substituting " AFP Minister ' s " for " Attorney-General ' s " , effective 11 May 2018. For transitional rules, see note under s 72.28 .

S 104.2(5) substituted by No 95 of 2016, s 3 and Sch 1 item 1C, effective 7 June 2017. S 104.2(5) formerly read:

(5)
To avoid doubt, a senior AFP member may seek the Attorney-General ' s consent to request an interim control order in relation to a person, even if such a request has previously been made in relation to the person.

S 104.2(6) amended by No 134 of 2014, s 3 and Sch 1 item 8A, by substituting " subsection (2) " for " paragraphs (2)(a) and (b) " , effective 9 January 2015.

S 104.2(6) inserted by No 116 of 2014, s 3 and Sch 1 item 72, effective 1 December 2014.

S 104.2 inserted by No 144 of 2005, s 3 and Sch 4 item 24, effective 15 December 2005. For review provisions, see note under definition of " advocate " in s 102.1.