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 B - Making an interim control order  

SECTION 104.4   Making an interim control order  

(1)    
The issuing court may make an order under this section in relation to the person, but only if:

(a)    the senior AFP member has requested it in accordance with section 104.3 ; and

(b)    the court has received and considered such further information (if any) as the court requires; and

(c)    the court is satisfied on the balance of probabilities:

(i) that making the order would substantially assist in preventing a terrorist act; or

(ii) that the person has provided training to, received training from or participated in training with a listed terrorist organisation; or

(iii) that the person has engaged in a hostile activity in a foreign country; or

(iv) that the person has 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

(v) that the person has 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

(vi) that making the order would substantially assist in preventing the provision of support for or the facilitation of a terrorist act; or

(vii) that the person has provided support for or otherwise facilitated the engagement in a hostile activity in a foreign country; and

(d)    

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 person by the order in accordance with section 104.5A is reasonably necessary, and reasonably appropriate and adapted, for the purpose of:

(iii) protecting the public from a terrorist act; or

(iv) preventing the provision of support for or the facilitation of a terrorist act; or

(v) preventing the provision of support for or the facilitation of the engagement in a hostile activity in a foreign country.

Note:

The issuing court may, in accordance with section 104.5B , specify conditions from which exemptions may be granted.

(2)    

For the purposes of paragraph (1)(d) , in determining whether:

(a)    each of the conditions; and

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

to be imposed on the person by the order is reasonably necessary, and reasonably appropriate and adapted, the court must take into account:

(c)    as a paramount consideration in all cases - the objects of this Division (see section 104.1 ); and

(d)    as a primary consideration in the case where the person is 14 to 17 years of age - the best interests of the person; and

(e)    as an additional consideration in all cases - the impact of:

(i) each of those conditions; and

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

on the person ' s circumstances (including the person ' s financial and personal circumstances).

(2A)    

In determining what is in the best interests of a person for the purposes of paragraph (2)(d) , the court must take into account the following:

(a)    the age, maturity, sex and background (including lifestyle, culture and traditions) of the person;

(b)    the physical and mental health of the person;

(c)    the benefit to the person of having a meaningful relationship with his or her family and friends;

(d)    the right of the person to receive an education;

(e)    the right of the person to practise his or her religion;

(f)    any other matter the court considers relevant.

(3)    
(Repealed by No 131 of 2021)

(4)    
In paragraphs (1)(c) and (d) , 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.