Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Act 2021 (131 of 2021)

Schedule 1   Extended supervision orders

Part 1   Main amendments

Criminal Code Act 1995

87   Section 105A.8 of the Criminal Code

Repeal the section, substitute:

105A.7A Making an extended supervision order

(1) A Supreme Court of a State or Territory may make a written order under this subsection, in accordance with sections 105A.7B and 105A.7C, if:

(a) any of the following applies:

(i) an application is made in accordance with section 105A.5 for an extended supervision order in relation to a terrorist offender;

(ii) an application is made in accordance with section 105A.5 for a continuing detention order in relation to a terrorist offender, and the Court is not satisfied as mentioned in paragraph 105A.7(1)(b) or (c) (or both);

(iii) the Court has reviewed under section 105A.12 a continuing detention order in relation to a terrorist offender and the Court is not satisfied as mentioned in paragraph 105A.12(4)(a); and

(b) after having regard to matters in accordance with section 105A.6B, the Court is satisfied on the balance of probabilities, on the basis of admissible evidence, that the offender poses an unacceptable risk of committing a serious Part 5.3 offence; and

(c) the Court is satisfied on the balance of probabilities that:

(i) each of the conditions; and

(ii) the combined effect of all of the conditions;

to be imposed on the offender by the order is reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the community from that unacceptable risk.

Determining whether conditions are reasonably necessary, appropriate and adapted

(2) For the purposes of paragraph (1)(c), 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, as a paramount consideration in all cases, the object of this Division (see section 105A.1).

Onus of satisfying Court

(3) The AFP Minister bears the onus of satisfying the Court of the matters referred to in paragraphs (1)(b) and (c).

Content of order

(4) The order must:

(a) state that the Court is satisfied of the matters mentioned in paragraphs (1)(b) and (c); and

(b) specify the name of the offender to whom the order relates; and

(c) specify all of the conditions, and any exemption conditions, that are to be imposed in accordance with section 105A.7B or 105A.7C on the offender by the order; and

(d) specify the period during which the order is to be in force, which must be a period of no more than 3 years that the Court is satisfied is reasonably necessary to prevent the unacceptable risk; and

(e) state that the offender's lawyer may request a copy of the order.

Note: The order may be suspended during the period that it is in force if the offender is detained in custody in a prison (see section 105A.18C).

Court may make successive extended supervision orders

(5) To avoid doubt, paragraph (4)(d) does not prevent a Supreme Court of a State or Territory making an extended supervision order in relation to a terrorist offender that begins to be in force immediately after a previous extended supervision order, or continuing detention order, in relation to the offender ceases to be in force.

Automatic revocation of continuing detention orders etc.

(6) A continuing detention order or interim detention order that is in force in relation to a terrorist offender is revoked by force of this subsection if:

(a) a Court makes an extended supervision order in relation to the offender; and

(b) the continuing detention order or interim detention order is in force immediately before the extended supervision order begins to be in force.

105A.7B Conditions of extended supervision orders and interim supervision orders

(1) The conditions that a Court may impose on a terrorist offender by an extended supervision order or interim supervision order are:

(a) any conditions that the Court is satisfied; and

(b) those conditions whose combined effect the Court is satisfied;

on the balance of probabilities, are reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the community from the unacceptable risk of the offender committing a serious Part 5.3 offence.

Note: The Court may, under section 105A.7C, specify conditions from which exemptions may be granted.

(1A) If the terrorist offender is subject to an order under a law of a State or Territory that is equivalent to a post-sentence order, the Court must consider the conditions under that State or Territory order in imposing conditions in accordance with subsection (1).

General rules about conditions

(2) To avoid doubt, without limiting subsection 33(3A) of the Acts Interpretation Act 1901, a condition imposed under this section may:

(a) prohibit or restrict specified conduct of the offender, or impose obligations on the offender; or

(b) impose restrictions and obligations on the offender in relation to classes of conduct, and prohibit other classes of that conduct; or

(c) impose different restrictions, obligations and prohibitions in relation to different classes of conduct; or

(d) for conduct that is prohibited by a condition described in a paragraph of subsection (3) - impose restrictions and obligations on the offender in relation to that conduct instead of prohibiting that conduct; or

(e) for conduct described in a paragraph of subsection (3) or (5) - impose different restrictions, obligations and prohibitions in relation to that conduct.

(2A) A condition imposed under this section must not require the offender to remain at specified premises for more than 12 hours within any 24 hours.

General conditions

(3) Without limiting this section, the conditions that the Court may impose in accordance with subsection (1) include conditions relating to the following:

(a) that the offender not be present at one or more of the following:

(i) specified areas or places;

(ii) specified classes of areas or places;

(iii) any area or place determined by a specified authority;

(b) that the offender reside at specified premises, and not begin to reside at any other premises without the prior permission of a specified authority;

(c) that the offender remain at specified premises between specified times each day, or on specified days, subject to subsection (2A);

(d) that the offender not leave Australia, or the State or Territory in which the offender's residence is located;

(e) that the offender provide a specified authority with the offender's passport (or passports) while the order is in force;

(f) that the offender not change the offender's name, or use any name that is not specified in the order;

(g) that the offender not apply for one or more of the following:

(i) any Australian travel document;

(ii) any travel document of a foreign country;

(iii) any licence to operate equipment, machinery, a heavy vehicle or a weapon, or any licence to possess a weapon;

(h) that the offender not communicate or associate by any means (including through third parties) with one or more of the following:

(i) specified individuals;

(ii) specified classes of individuals;

(iii) any individuals determined by a specified authority;

(i) that the offender not access or use specified forms of telecommunication or other technology (including the internet);

(j) that the offender not possess or use specified articles or substances;

(k) that the offender not carry out specified activities;

(l) that the offender not engage in one or more of the following:

(i) specified work;

(ii) specified classes of work;

(iii) specified activities relating to specified work or classes of work;

(m) that the offender not in engage in any training or education without the prior permission of a specified authority;

(n) that the offender do any or all of the following:

(i) attend and participate in treatment, rehabilitation or intervention programs or activities;

(ii) undertake psychological or psychiatric assessment or counselling;

as specified in the order or as directed by a specified authority;

(o) that the offender attend and participate in interviews and assessments (including for the purposes of paragraph (n)) as specified in the order or as directed by a specified authority;

(p) that the offender allow the results of the interviews and assessments referred to in paragraph (o), and any other specified information, to be disclosed to a specified authority;

(q) that the offender provide specifiedinformation to a specified authority within a specified period or before a specified event;

(r) that the offender comply with any reasonable direction given to the offender by a specified authority in relation to any specified condition (whether or not the condition is imposed in accordance with this subsection).

Note: See also subsection (8) and sections 100.1 and 105A.2 in relation to references to premises, reside or residence, and work.

(4) If a condition of the order authorises a specified authority to give a direction, the specified authority may give a direction only if the specified authority is satisfied that the direction is reasonable in all the circumstances to give effect to:

(a) the condition; or

(b) the object of this Division (see section 105A.1).

Conditions relating to monitoring and enforcement

(5) Without limiting this section, the conditions that the Court may impose in accordance with subsection (1) include conditions relating to the following:

(a) that the offender submit to testing by a specified authority in relation to the possession or use of specified articles or substances;

(b) that the offender allow himself or herself to be photographed by a specified authority;

(c) that the offender allow impressions of the offender's fingerprints to be taken by a specified authority;

(d) that the offender be subject to electronic monitoring (for example, by wearing a monitoring device at all times), and comply with directions given by a specified authority in relation to electronic monitoring;

(e) a condition that:

(i) the person carry at all times a specified mobile phone; and

(ii) the person be available to answer any call from a specified authority or, as soon as reasonably practicable, return a call that the person was unable to answer; and

(iii) the person comply with specified directions, or any directions given by a specified authority, in relation to the condition in subparagraph (i) or (ii);

(f) that the offender attend at places, and report to persons, at times, specified:

(i) in the order; or

(ii) by a specified authority;

(g) that the offender allow visits at specified premises from, and entry to specified premises by, a specified authority at any time for the purpose of ensuring the offender's compliance with a condition imposed in accordance with paragraph (3)(c);

(h) that the offender provide a specified authority with a schedule setting out the offender's proposed movements for a specified period and comply with that schedule during the period;

(i) that the offender allow any police officer to enter specified premises and:

(i) search the offender; and

(ii) search the offender's residence or any premises which the offender intends to be the offender's residence; and

(iii) search any other premises under the offender's control; and

(iv) seize any item found during those searches, including to allow the item to be examined forensically;

(j) that the offender facilitate access (including by providing passwords or in any other way) to one or more of the following:

(i) electronic equipment or technology;

(ii) any data held within, or accessible from, any electronic equipment or technology;

owned or controlled by the offender, for the purposes of a police officer searching and seizing any such equipment or accessing such data (or both).

Note 1: For paragraphs (5)(b) and (c), restrictions apply to the use of photographs or impressions of fingerprints (see section 105A.7D).

Note 2: For paragraph (5)(d), see also section 105A.7E (obligations relating to monitoring devices).

(6) A power exercised under a condition imposed in accordance with subsection (5) (other than a power to give a direction) may be exercised only if the person exercising the power is satisfied that it is reasonably necessary to do so in order to:

(a) give effect to the order; or

(b) facilitate or monitor compliance with the order.

Access to lawyers

(7) This section does not affect the offender's right to contact, communicate or associate with the offender's lawyer unless the offender's lawyer is a specified individual, or an individual in a specified class of individuals, as mentioned in paragraph (3)(h). If the offender's lawyer is so specified, the offender may contact, communicate or associate with any other lawyer who is not so specified.

References to work

(8) In subsection (3), a reference to work includes a reference to voluntary work.

105A.7C Conditions where exemptions may be granted

(1) A Supreme Court of a State or Territory that makes an extended supervision order or interim supervision order in relation to a terrorist offender may specify conditions included in the order that are to be exemption conditions.

(2) An exemption condition is a condition specified in the order from which the offender may apply for a temporary exemption.

(3) The Court may make provision in relation to applications for temporary exemptions.

(4) The offender may apply, in writing, to a specified authority for an exemption from an exemption condition. The application must:

(a) include a reason for the exemption; and

(b) comply with any other requirements provided for under subsection (3).

(5) If the offender so applies, the specified authority may:

(a) require further information to be provided by the offender before making a decision in relation to the application; and

(b) either:

(i) grant or refuse the exemption; or

(ii) grant the exemption subject to any reasonable directions specified in writing by the specified authority.

105A.7D Treatment of photographs and impressions of fingerprints

(1) A photograph, or an impression of fingerprints, taken of or from a terrorist offender as mentioned in paragraph 105A.7B(5)(b) or (c) must be used only for the purpose of ensuring compliance with an extended supervision order or interim supervision order relating to the offender.

(2) The photograph or the impression must be destroyed if:

(a) no extended supervision order or interim supervision order has been in force in relation to the offender for 12 months; and

(b) either:

(i) no proceedings relating to an extended supervision order or interim supervision order relating to the offender were on foot in that 12-month period; or

(ii) proceedings relating to an extended supervision order or interim supervision order relating to the offender were discontinued or completed within that 12-month period.

(3) A person commits an offence if:

(a) the person engages in conduct; and

(b) the conduct contravenes subsection (1).

Penalty: Imprisonment for 2 years.

105A.7E Obligations relating to monitoring devices

Additional obligations on terrorist offender

(1) If the Court imposes a condition under paragraph 105A.7B(5)(d) in an extended supervision order or interim supervision order that a terrorist offender wear a monitoring device, then:

(a) the condition must require the offender to wear the monitoring device at all times; and

(b) the order must include the condition referred to in paragraph 105A.7B(5)(e); and

(c) the order must include a condition that the offender do all of the following:

(i) allow a specified authority to enter the offender's residence at any reasonable time for any purpose relating to the electronic monitoring of the offender;

(ii) allow a specified authority to install, repair or fit the monitoring device or any related monitoring equipment;

(iii) take the steps specified in the order (if any) and any other reasonable steps to ensure that the monitoring device and any related monitoring equipment are or remain in good working order;

(iv) if the offender becomes aware that the monitoring device and any related monitoring equipment are not in good working order - notify a specified authority as soon as reasonably practicable;

(v) allow a specified authority, police officer or corrective services officer to remove the monitoring device;

(vi) allow a police officer to remove any related monitoring equipment.

Powers of specified authorities and others

(2) After including the condition under paragraph 105A.7B(5)(d) in the order, the Court must also include in the order an authorisation for:

(a) one or more specified authorities to enter the offender's residence as specified in the order at any reasonable time for any purpose relating to the electronic monitoring of the offender; and

(b) one or more specified authorities to install, repair or fit the monitoring device and any related monitoring equipment; and

(c) one or more specified authorities or police officersto take the steps specified in the order to ensure that the device and any related monitoring equipment are or remain in good working order; and

(d) one or more specified authorities, police officersor corrective services officers to remove the monitoring device; and

(e) one or more police officers to remove any related monitoring equipment.

(3) If:

(a) a monitoring device is installed on the terrorist offender; and

(b) any of the following events occurs:

(i) the condition under paragraph 105A.7B(5)(d) is removed from the order;

(ii) the order ceases to be in force;

(iii) the offender is detained in custody;

the device and any related monitoring equipment may be removed in accordance with paragraph (2)(d) or (e) even though:

(c) for subparagraph (b)(i) or (ii) - no authorisation under subsection (2) is in force; or

(d) for subparagraph (b)(iii) - the offender is not required to comply with a condition of the order because of section 105A.18C.

Note: For the definition of detained in custody , see subsection 100.1(1).

Powers relating to monitoring devices and related electronic equipment

(4) Before exercising a power referred to in paragraph (2)(a), (b), (d) or (e), or subsection (3), a specified authority, police officer or corrective services officer must inform the offender:

(a) that the device and equipment are to be installed, repaired, fitted or removed (as the case requires); and

(b) of the proposed timing of the taking of the action; and

(c) that the offender may consent to the taking of the action; and

(d) that if consent is not given, reasonable force may be used to take the action, or to enter the offender's residence in order to take the action.

(5) If the offender does not give consent, reasonable force may be used by a police officer to take the action, or to enter the offender's residence in order to take the action.

105A.7F Copy of an extended supervision order etc. must be given to terrorist offender's lawyer

(1) A copy of an extended supervision order or interim supervision order that is made under section 105.7A in relation to a terrorist offender must be given to the offender's lawyer as soon as practicable after being requested by the lawyer.

(2) This section does not entitle the lawyer to request, or be given a copy of, a document other than the order.