Criminal Code Act 1995

Schedule - The Criminal Code  

Section 3

CHAPTER 5 - THE SECURITY OF THE COMMONWEALTH  

Part 5.3 - Terrorism  

Division 104 - Control orders  

Subdivision F - Adding conditions to a control order  

SECTION 104.23   Application by the AFP Commissioner for addition of conditions  

(1)    

The Commissioner of the Australian Federal Police may cause an application to be made to an issuing court to vary, under section 104.24 , a confirmed control order, by adding one or more conditions, in accordance with section 104.5A , to the order, if the Commissioner:

(a)    suspects on reasonable grounds that the varied order in the terms to be sought would substantially assist in preventing a terrorist act; or

(b)    suspects on reasonable grounds that the person has:

(i) provided training to, received training from or participated in training with a listed terrorist organisation; or

(ii) engaged in a hostile activity in a foreign country; or

(iii) been convicted in Australia of an offence relating to terrorism, a terrorist organisation (within the meaning of subsection 102.1(1) ) or a terrorist act (within the meaning of section 100.1 ); or

(iv) been convicted in a foreign country of an offence that is constituted by conduct that, if engaged in in Australia, would constitute a terrorism offence (within the meaning of subsection 3(1) of the Crimes Act 1914 ); or

(c)    suspects on reasonable grounds that the varied order in the terms to be sought would substantially assist in preventing the provision of support for or the facilitation of a terrorist act; or

(d)    suspects on reasonable grounds that the person has provided support for or otherwise facilitated the engagement in a hostile activity in a foreign country.

(2)    
The Commissioner must cause the court to be given:

(a)    

a copy of the additional conditions to be imposed on the person by the order; and

(b)    

the following:

(i) an explanation as to why each of those conditions should be imposed on the person; and

(ii) if the Commissioner is aware of any facts relating to why any of those conditions should not be imposed on the person - a statement of those facts; and

(c)    the outcomes and particulars of all previous applications under this section for variations of the order; and

(d)    if the person is at least 18 years of age and the Commissioner has information about the person ' s age - that information; and

(e)    if the person is under 18 years of age - information about the person ' s age.

Note 1:

A control order cannot be made in relation to a person who is under 14 years of age (see section 104.28 ).

Note 2:

An offence might be committed if the application is false or misleading (see sections 137.1 and 137.2 ).

(3)    
As soon as practicable after an application is made under subsection (1) , the Commissioner must:

(a)    cause the documents mentioned in subsection (3AA) to be served personally on the person in relation to whom the order is made; and

(b)    if the person is a resident of Queensland, or the court will hear the application in Queensland - cause the documents mentioned in subsection (3AA) to be given to the Queensland public interest monitor; and

(c)    if the person is 14 to 17 years of age - cause reasonable steps to be taken to serve the documents mentioned in subsection (3AA) personally on at least one parent or guardian of the person.

(3AA)    
The documents are the following:

(a)    written notice of the application and the grounds on which the variation is sought;

(b)    a copy of the documents mentioned in paragraph (2)(b) ;

(c)    any other written details required to enable the person in relation to whom the order is made to understand and respond to the substance of the facts, matters and circumstances which will form the basis of the variation of the order.

(3A)    
To avoid doubt, subsections (3) and (3AA) do not require any information to be given if disclosure of that information is likely:

(a)    to prejudice national security (within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004 ); or

(b)    to be protected by public interest immunity; or

(c)    to put at risk ongoing operations by law enforcement agencies or intelligence agencies; or

(d)    to put at risk the safety of the community, law enforcement officers or intelligence officers.

The fact that information of a kind mentioned in this subsection is not required to be disclosed does not imply that such information is required to be disclosed in other provisions of this Part that relate to the disclosure of information.

(4)    
The following persons may adduce additional evidence (including by calling witnesses or producing material), or make additional submissions, to the court in relation to the application to vary the order:

(a)    the Commissioner;

(b)    one or more othe AFP members;

(c)    the person in relation to whom the order is made;

(d)    one or more representatives of the person;

(e)    if paragraph (3)(b) applies - the Queensland public interest monitor.

(5)    
Subsection (4) does not otherwise limit the power of the court to control proceedings in relation to an application to vary a confirmed control order.

(6)    
In subsection (1) , a reference to a terrorist act includes:

(a)    a reference to a terrorist act that does not occur; and

(b)    a reference to a specific terrorist act; and

(c)    a reference to more than one terrorist act.