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Counter-Terrorism Legislation Amendment Act (No. 1) 2016 (82 of 2016)

Schedule 8 Monitoring of compliance with control orders etc.

Crimes Act 1914

1 After Part IAAA

Insert:

Part IAAB - Monitoring of compliance with control orders etc.

Division 1 - Introduction

3ZZJA Simplified outline of this Part

• If a control order is in force in relation to a person, and the person has a prescribed connection with premises, a constable may enter and search the premises if:

(a) the person is the occupier of the premises and consents to the entry; or

(b) the entry is made under a monitoring warrant.

• If a control order is in force in relation to a person, a constable may conduct an ordinary search or a frisk search of the person if:

(a) the person consents to the search; or

(b) the search is conducted under a monitoring warrant.

• A search must be for any of the following purposes:

(a) the protection of the public from a terrorist act;

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

(c) preventing the provision of support for, or the facilitation of, the engagement in a hostile activity in a foreign country;

(d) determining whether the control order has been, or is being, complied with.

3ZZJB Definitions

In this Part:

confirmed control order has the same meaning as in Part 5.3 of the Criminal Code.

control order has the same meaning as in Part 5.3 of the Criminal Code.

damage , in relation to data, includes damage by erasure of data or addition of other data.

engage in a hostile activity has the same meaning as in Part 5.3 of the Criminal Code.

evidential material has the same meaning as in Part IAA.

foreign country , when used in the expression hostile activity in a foreign country , has the same meaning as in the Criminal Code.

frisk search has the same meaning as in Part IAA.

inspecting officer means a person appointed under subsection 3ZZUA(1).

interim control order has the same meaning as in Part 5.3 of the Criminal Code.

issuing officer means a magistrate.

monitoring powers :

(a) in relation to premises - has the meaning given by sections 3ZZKB, 3ZZKC and 3ZZKD; or

(b) in relation to a person - has the meaning given by section 3ZZLB.

monitoring warrant means a warrant under section 3ZZOA or 3ZZOB.

ordinary search has the same meaning as in Part IAA.

premises includes the following:

(a) a structure, building or conveyance;

(b) a place (whether or not enclosed or built on);

prescribed connection with premises has the meaning given by section 3ZZJC.

recently used conveyance , in relation to a search of a person, means a conveyance that the person had operated or occupied at any time within 24 hours before the search commenced.

relevant data has the meaning given by subsection 3ZZKC(3).

seizable item has the same meaning as in Part IAA.

staff member of the Australian Federal Police means a person referred to in paragraph (a) of the definition of law enforcement officer in subsection 3(1).

State or Territory agency : see section 3ZZUF.

State or Territory inspecting authority : see section 3ZZUF.

strip search has the same meaning as in Part IAA.

3ZZJC Prescribed connection with premises

For the purposes of this Part, a person has a prescribed connection with premises if:

(a) the person:

(i) is the legal or beneficial owner of the premises (whether alone or together with one or more other persons); or

(ii) has any other legal or equitable estate or interest in the premises; or

(b) the person occupies, or resides on, the premises; or

(d) the person performs any of the duties of his or her employment on the premises; or

(e) the person carries on a business on the premises (whether alone or together with one or more other persons); or

(f) the person performs voluntary work on the premises; or

(g) both:

(i) the premises are used by a school, college, university or other educational institution; and

(ii) the person attends the premises in his or her capacity as a student at the school, college, university or other educational institution.

3ZZJD Privileges not abrogated

Self-incrimination

(1) This Part (other than section 3ZZUE) does not affect the right of a person to refuse to answer a question, give information, or produce a document, on the ground that the answer to the question, the information, or the production of the document, might tend to incriminate him or her or make him or her liable to a penalty.

Legal professional privilege

(2) This Part (other than section 3ZZUE) does not affect the right of a person to refuse to answer a question, give information, or produce a document, on the ground that:

(a) the answer to the question or the information would be privileged from being given on the ground of legal professional privilege; or

(b) the document would be privileged from being produced on the ground of legal professional privilege.

Other legislation not affected

(3) The fact that this section is included in this Part does not imply that the privilege against self-incrimination or legal professional privilege is abrogated in any other law of the Commonwealth.

3ZZJE Application of Part

(1) This Part is not intended to limit or exclude the operation of another law of the Commonwealth (including other provisions of this Act) relating to:

(a) the search of premises; or

(b) the searching of persons or conveyances; or

(d) the requesting of information or documents from persons.

(2) To avoid any doubt, it is declared that even though another law of the Commonwealth (including other provisions of this Act) provides power to do one or more of the things referred to in subsection (1), a similar power conferred by this Part may be used despite the existence of the power under the other law.

Division 2 - Powers of constables in relation to premises

Subdivision A - Monitoring powers

3ZZKA Entering premises by consent or under a warrant

(1) If:

(a) a control order is in force in relation to a person; and

(b) the person has a prescribed connection with particular premises;

a constable may enter the premises, and exercise the monitoring powers, for any of the following purposes:

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

(e) preventing the provision of support for, or the facilitation of, the engagement in a hostile activity in a foreign country;

(f) determining whether the control order has been, or is being, complied with.

Note: The monitoring powers are set out in sections 3ZZKB, 3ZZKC and 3ZZKD.

(2) However, a constable is not authorised to enter the premises unless:

(a) the person:

(i) is the occupier of the premises; and

(ii) has consented to the entry; or

(b) the entry is made under a monitoring warrant.

Note: If entry to the premises is with the occupier's consent, the constable must leave the premises if the consent ceases to have effect (see section 3ZZNA).

3ZZKB General monitoring powers

The following are the monitoring powers that a constable may exercise in relation to premises under section 3ZZKA:

(a) the power to search the premises and any thing on the premises;

(b) the power to search for and record fingerprints found at the premises;

(d) the power to examine or observe any activity conducted on the premises;

(e) the power to inspect, examine, take measurements of or conduct tests on any thing on the premises;

(f) the power to make any still or moving image or any recording of the premises or any thing on the premises;

(g) the power to inspect any document on the premises;

(h) the power to take extracts from, or make copies of, any such document;

(i) the power to take onto the premises such equipment and materials as the constable requires for the purpose of exercising powers in relation to the premises;

(j) the powers set out in subsections 3ZZKC(1) and (4) and 3ZZKD(2).

3ZZKC Operating electronic equipment

(1) The monitoring powers include the power to:

(a) operate electronic equipment on the premises; and

(b) use a disk, tape or other storage device that:

(i) is on the premises; and

(ii) can be used with the equipment or is associated with it.

(2) The monitoring powers include the powers mentioned in subsection (4) if relevant data is found in the exercise of the power under subsection (1).

(3) Relevant data means information relevant to:

(a) the protection of the public from a terrorist act; or

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

(c) preventing the provision of support for, or the facilitation of, the engagement in a hostile activity in a foreign country; or

(d) determining whether the relevant control order has been, or is being, complied with.

(4) The powers are as follows:

(a) the power to operate electronic equipment on the premises to put the relevant data in documentary form and remove the documents so produced from the premises;

(b) the power to operate electronic equipment on the premises to transfer the relevant data to a disk, tape or other storage device that:

(i) is brought to the premises for the exercise of the power; or

(ii) is on the premises and the use of which for that purpose has been agreed in writing by the occupier of the premises;

and remove the disk, tape or other storage device from the premises.

(5) A constable may operate electronic equipment as mentioned in subsection (1) or (4) only if the constable believes on reasonable grounds that the operation of the equipment can be carried out without damage to the equipment.

Note: For compensation for damage to electronic equipment, see section 3ZZNF.

3ZZKD Securing electronic equipment to obtain expert assistance

Scope

(1) This section applies if a constable enters premises under a monitoring warrant.

Securing equipment

(2) The monitoring powers include the power to secure any electronic equipment that is on the premises if the constable suspects on reasonable grounds that:

(a) there is relevant data on the premises; and

(b) the relevant data may be accessible by operating the equipment; and

(d) the relevant data may be destroyed, altered or otherwise interfered with, if the constable does not take action under this subsection.

The equipment may be secured by locking it up, placing a guard or any other means.

(3) The constable must give notice to the occupier of the premises, or another person who apparently represents the occupier, of:

(a) the constable's intention to secure the equipment; and

(b) the fact that the equipment may be secured for up to 24 hours.

Period equipment may be secured

(4) The equipment may be secured until the earlier of the following happens:

(a) the 24-hour period ends;

(b) the equipment has been operated by the expert.

Note: For compensation for damage to electronic equipment, see section 3ZZNF.

Extensions

(5) The constable may apply to an issuing officer for an extension of the 24-hour period if the constable believes on reasonable grounds that the equipment needs to be secured for longer than that period.

(6) Before making the application, the constable must give notice to the occupier of the premises, or another person who apparently represents the occupier, of his or her intention to apply for an extension. The occupier or other person is entitled to be heard in relation to that application.

(7) The 24-hour period may be extended more than once.

Note: For the process by which an issuing officer may extend the period, see section 3ZZQA.

Subdivision B - Powers to ask questions and seek production of documents

3ZZKE Asking questions and seeking production of documents

Scope

(1) This section applies if a constable enters premises under section 3ZZKA.

Entry with consent

(2) If the entry is authorised because the occupier of the premises consented to the entry, the constable may ask the occupier to answer any questions, and produce any document, that is likely to assist in:

(a) the protection of the public from a terrorist act; or

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

(c) preventing the provision of support for, or the facilitation of, the engagement in a hostile activity in a foreign country; or

(d) determining whether the relevant control order has been, or is being, complied with.

Note 1: A person is not required to answer a question, or produce a document, in response to a request under this subsection.

Note 2: See also sections 3ZZRC and 3ZZRD.

Entry under a monitoring warrant

(3) If:

(a) the entry is authorised by a monitoring warrant; and

(b) the warrant authorises the constable to exercise powers under this subsection;

the constable may (subject to subsections (4) to (7)) require any person on the premises to answer any questions, and produce any document, that is likely to assist in:

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

(e) preventing the provision of support for, or the facilitation of, the engagement in a hostile activity in a foreign country; or

(f) determining whether the relevant control order has been, or is being, complied with.

Note: See also sections 3ZZRC and 3ZZRD.

Legal professional privilege and privilege against self-incrimination

(4) Before a constable requires a person to answer a question or produce a document under subsection (3), the constable must explain the effect of section 3ZZJD to the person.

(5) An answer to a question or a document produced under subsection (3) by a person is not admissible in evidence against him or her in criminal proceedings if a constable fails to explain the effect of section 3ZZJD to the person in accordance with subsection (4). The failure does not otherwise affect the use of the answer or document.

Note: For the uses that may be made of the answer or document, see sections 3ZZRC and 3ZZRD.

Exceptions to subsection (3)

(6) A person is not subject to a requirement under subsection (3) if:

(a) the person does not possess the information or document required; and

(b) the person has taken all reasonable steps available to the person to obtain the information or document required and has been unable to obtain it.

(7) A person is not subject to a requirement under subsection (3) to produce a document if the document is not at the premises.

Offence

(8) A person commits an offence if:

(a) the person is subject to a requirement under subsection (3); and

(b) the person engages in conduct; and

Penalty for contravention of this subsection: 30 penalty units.

Subdivision C - Other powers

3ZZKF Other powers

Scope

(1) This section applies if:

(a) a constable enters premises under section 3ZZKA; and

(b) the entry is authorised by a monitoring warrant.

Powers

(2) The constable has the following powers in relation to the premises:

(a) the power to seize things found during the exercise of monitoring powers on the premises that the constable suspects on reasonable grounds to be:

(i) evidential material; or

(ii) evidential material (within the meaning of the Proceeds of Crime Act 2002); or

(iii) tainted property (within the meaning of that Act); or

(iv) seizable items;

(b) the power to conduct an ordinary search or a frisk search of a person at or near the premises if the constable suspects on reasonable grounds that the person has any evidential material or seizable items in his or her possession;

(c) the power to seize other things found while conducting an ordinary search or a frisk search of a person at or near the premises that the constable suspects on reasonable grounds to be:

(i) evidential material; or

(ii) evidential material (within the meaning of the Proceeds of Crime Act 2003); or

(iii) tainted property (within the meaning of that Act); or

(iv) seizable items.

3ZZKG Availability of assistance and use of force in executing a warrant

Scope

(1) This section applies if:

(a) a constable enters premises under section 3ZZKA; and

(b) the entry is authorised by a monitoring warrant.

Availability of assistance and use of force

(2) In:

(a) executing the warrant; or

(b) exercising the powers set out in section 3ZZKF in relation to the premises;

the constable may use such force against persons and things as is necessary and reasonable in the circumstances.

(3) In executing the warrant, the constable may obtain such assistance as is necessary and reasonable in the circumstances.

(4) If a person (other than a constable) has been authorised by the constable to assist in executing the warrant, the person may:

(a) enter the premises; and

(b) exercise the monitoring powers in relation to the premises; and

(i) entering the premises; or

(ii) exercising the monitoring powers;

use such force against things as is necessary and reasonable in the circumstances.

(5) If a person (other than a constable) has been authorised by the constable to assist in executing the warrant:

(a) the person may only exercise the monitoring powers set out in subsection 3ZZKD(2) if the constable forms the suspicion mentioned in that subsection; and

(b) the person must not exercise a power set out in subsection 3ZZKD(5) or section 3ZZKE or 3ZZKF.

(6) A power exercised by a person assisting the constable as mentioned in subsection (4) is taken to have been exercised by the constable.

Division 3 - Powers of constables in relation to persons subject to control orders

3ZZLA Searching a person by consent or under a warrant

(1) If a control order is in force in relation to a person, a constable may conduct an ordinary search or a frisk search of the person, and exercise the monitoring powers, for any of the following purposes:

(a) the protection of the public from a terrorist act;

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

(c) preventing the provision of support for, or the facilitation of, the engagement in a hostile activity in a foreign country;

(d) determining whether the control order has been, or is being, complied with.

Note: The monitoring powers are set out in section 3ZZLB.

(2) However, a constable is not authorised to conduct an ordinary search or a frisk search of the person unless:

(a) the person has consented to the search; or

(b) the search is conducted under a monitoring warrant.

3ZZLB Monitoring powers

The following are the monitoring powers that a constable may exercise in relation to a person under section 3ZZLA:

(a) the power to search things found in the possession of the person;

(b) the power to search any recently used conveyance;

(i) a search under section 3ZZLA; or

(ii) a search under paragraph (a) or (b) of this section;

(d) the power to take samples from things found in the course of:

(i) a search under section 3ZZLA; or

(ii) a search under paragraph (a) or (b) of this section.

3ZZLC Seizure powers

Scope

(1) This section applies if:

(a) a constable conducts a search of a person, or of a recently used conveyance, under section 3ZZLA; and

(b) the search is authorised by a monitoring warrant.

Powers

(2) The constable has the following powers:

(a) the power to seize things found in the course of the search that the constable suspects on reasonable grounds to be:

(i) evidential material; or

(ii) seizable items;

(b) the power to seize other things found on or in the possession of the person, or in the recently used conveyance, in the course of the search that the constable suspects on reasonable grounds to be:

(i) evidential material (within the meaning of the Proceeds of Crime Act 2002); or

(ii) tainted property (within the meaning of that Act).

3ZZLD Availability of assistance and use of force in executing a warrant

Scope

(1) This section applies if:

(a) a constable conducts a search of a person, or of a recently used conveyance, under section 3ZZLA; and

(b) the search is authorised by a monitoring warrant.

Availability of assistance and use of force

(2) In:

(a) executing the warrant; or

(b) exercising the powers set out in section 3ZZLC in relation to the person or conveyance;

the constable may use such force against persons and things as is necessary and reasonable in the circumstances.

(3) In executing the warrant, the constable may obtain such assistance as is necessary and reasonable in the circumstances.

(4) If a person (other than a constable) has been authorised by the constable to assist in executing the warrant, the person may:

(a) exercise the monitoring powers in relation to the person mentioned in paragraph (1)(a); and

(b) in exercising the monitoring powers, use such force against things as is necessary and reasonable in the circumstances.

(5) If a person (other than a constable) has been authorised by the constable to assist in executing the warrant, the person must not exercise a power set out in section 3ZZLC.

(6) A power exercised by a person assisting the constable as mentioned in subsection (4) is taken to have been exercised by the constable.

Division 4 - Obligations and incidental powers of constables

3ZZNA Consent of occupier of premises

(1) Before obtaining the consent of an occupier of premises for the purposes of paragraph 3ZZKA(2)(a), a constable must inform the occupier that the occupier may refuse consent.

(2) A consent has no effect unless the consent is voluntary.

(3) A consent may be expressed to be limited to entry during a particular period. If so, the consent has effect for that period unless the consent is withdrawn before the end of that period.

(4) A consent that is not limited as mentioned in subsection (3) has effect until the consent is withdrawn.

(5) If a constable entered premises because of the consent of the occupier of the premises, the constable, and any person assisting the constable, must leave the premises if the consent ceases to have effect.

(6) If:

(a) a constable enters premises because of the consent of the occupier of the premises; and

(b) the constable has not shown the occupier his or her identity card before entering the premises;

the constable must do so on, or as soon as is reasonably practicable after, entering the premises.

3ZZNB Consent to search of a person

(1) Before obtaining the consent of a person for the purposes of paragraph 3ZZLA(2)(a), a constable must inform the person that the person may refuse consent.

(2) A consent has no effect unless the consent is voluntary.

(3) A consent may be expressed to be limited to a particular period. If so, the consent has effect for that period unless the consent is withdrawn before the end of that period.

(4) A consent that is not limited as mentioned in subsection (3) has effect until the consent is withdrawn.

3ZZNC Announcement before entry under warrant

Before entering premises under a monitoring warrant, a constable must:

(a) announce that he or she is authorised to enter the premises; and

(b) show his or her identity card to the occupier of the premises, or to another person who apparently represents the occupier, if the occupier or other person is present at the premises; and

3ZZND Constable to be in possession of warrant

A constable executing a monitoring warrant must be in possession of the warrant or a copy of the warrant.

3ZZNE Details of warrant etc. to be given to occupier

If:

(a) a monitoring warrant is being executed by a constable in relation to premises; and

(b) the occupier of the premises, or another person who apparently represents the occupier, is present at the premises;

the constable must, as soon as practicable, make a copy of the warrant available to the occupier or other person.

3ZZNF Compensation for damage to electronic equipment

Scope

(1) This section applies if:

(a) as a result of electronic equipment being operated as mentioned in this Part:

(i) damage is caused to the equipment; or

(ii) the data recorded on the equipment is damaged; or

(iii) programs associated with the use of the equipment, or with the use of the data, are damaged or corrupted; and

(b) the damage or corruption occurs because:

(i) insufficient care was exercised in selecting the person who was to operate the equipment; or

(ii) insufficient care was exercised by the person operating the equipment.

Compensation

(2) The Commonwealth must pay the owner of the equipment, or the user of the data or programs, such reasonable compensation for the damage or corruption as the Commonwealth and the owner or user agree on.

(3) However, if the owner or user and the Commonwealth fail to agree, the owner or user may institute proceedings in:

(a) the Federal Court of Australia or the Federal Circuit Court of Australia; or

(b) a court of a State or Territory that has jurisdiction in relation to the matter;

for such reasonable amount of compensation as the court determines.

(4) In determining the amount of compensation payable, regard is to be had to whether the occupier of the premises, or the occupier's employees or agents, if they were available at the time, provided any appropriate warning or guidance on the operation of the equipment.

3ZZNG Occupier entitled to be present during search

(1) If:

(a) a monitoring warrant in relation to premises is being executed; and

(b) the occupier of the premises, or another person who apparently represents the occupier, is present at the premises;

the person is entitled to observe the search being conducted.

(2) The right to observe the search being conducted ceases if the person impedes the search.

(3) This section does not prevent 2 or more areas of the premises being searched at the same time.

3ZZNH Person subject to a control order is entitled to be present during search

(1) If:

(a) a monitoring warrant in relation to premises is being executed; and

(b) the warrant was issued on the basis that a control order is in force in relation to a person; and

the person is entitled to observe the search being conducted.

(2) The right to observe the search being conducted ceases if the person impedes the search.

(3) This section does not prevent 2 or more areas of the premises being searched at the same time.

Division 5 - Monitoring warrants

3ZZOA Monitoring warrant in relation to premises

Application for warrant

(1) A constable may apply to an issuing officer for a warrant under this section in relation to premises.

Issue of warrant

(2) The issuing officer may issue the warrant if the issuing officer is satisfied, by information on oath or affirmation, that:

(a) a control order is in force in relation to a person; and

(b) the person has a prescribed connection with the premises; and

(i) the nature of the person's prescribed connection with the premises; and

(ii) one or more of the matters set out in paragraphs (4)(a) to (f), and the matter set out in paragraph (4)(g); and

(iii) such other matters (if any) as the issuing officer considers relevant;

it is reasonably necessary that one or more constables should have access to the premises for the purposes of:

(iv) the protection of the public from a terrorist act; or

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

(vi) preventing the provision of support for, or the facilitation of, the engagement in a hostile activity in a foreign country; or

(vii) determining whether the control order has been, or is being, complied with.

(3) The issuing officer must not issue the warrant unless the applicant or some other person has given to the issuing officer, either orally or by affidavit, such further information (if any) as the issuing officer requires concerning the grounds on which the issue of the warrant is being sought.

(4) The matters referred to in subparagraph (2)(c)(ii) are the following:

(a) the possibility that the person has engaged, is engaging, or will engage, in a terrorist act;

(b) the possibility that the person has provided, is providing, or will provide, support for a terrorist act;

(d) the possibility that the person has provided, is providing, or will provide, support for the engagement in a hostile activity in a foreign country;

(e) the possibility that the person has facilitated, is facilitating, or will facilitate, the engagement in a hostile activity in a foreign country;

(f) the possibility that the person has contravened, is contravening, or will contravene, the control order;

(g) whether allowing one or more constables to have access to the premises, and exercise the monitoring powers in relation to the premises and the powers set out in section 3ZZKF in relation to the premises, would be likely to have the least interference with any person's liberty and privacy that is necessary in the circumstances.

Content of warrant

(5) The warrant must:

(a) describe the premises to which the warrant relates; and

(b) state that the warrant is issued under this section; and

(d) authorise one or more constables (whether or not named in the warrant) from time to time while the warrant remains in force:

(i) to enter the premises; and

(ii) to exercise the monitoring powers in relation to the premises; and

(iii) to exercise the powers set out in section 3ZZKF in relation to the premises; and

(e) state whether entry is authorised to be made at any time of the day or during specified hours of the day; and

(f) specify the time at which the warrant expires (see subsection (7)); and

(g) state whether the warrant authorises a constable to exercise powers under subsection 3ZZKE(3) in relation to the entry; and

(h) state that a person who is not a constable may be authorised under section 3ZZKG to assist in executing the warrant; and

(i) state the name of the person to whom the relevant control order relates; and

(j) describe the nature of the person's prescribed connection with the premises; and

(k) state that the control order is in force; and

(l) state whether the control order is an interim control order or a confirmed control order; and

(m) specify the date the control order was made; and

(n) specify the court that made the control order; and

(o) if the control order is an interim control order - specify the date the order was served on the person; and

(p) if the control order is a confirmed control order - specify the end of the period during which the order is in force; and

(q) if the warrant is issued for the purposes of determining whether the control order has been, or is being, complied with - specify the obligations, prohibitions and restrictions that are imposed by the order.

(6) To avoid doubt, paragraph (5)(c) does not require the purpose or purposes for which the warrant is issued to be specified in the warrant if disclosure of that purpose, or those purposes, is likely to prejudice national security (within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004).

(7) The time stated in the warrant under paragraph (5)(f) as the time at which the warrant expires must be a time that is not later than the end of the seventh day after the day on which the warrant is issued.

Example: If a warrant is issued at 3 pm on a Monday, the expiry time specified must not be later than midnight on Monday in the following week.

(8) Paragraph (5)(f) and subsection (7) do not prevent the issue of successive monitoring warrants in relation to the same premises.

3ZZOB Monitoring warrant in relation to a person

Application for warrant

(1) A constable may apply to an issuing officer for a warrant under this section in relation to a person.

Issue of warrant

(2) The issuing officer may issue the warrant if the issuing officer is satisfied, by information on oath or affirmation, that:

(a) a control order is in force in relation to the person; and

(b) having regard to:

(i) one or more of the matters set out in paragraphs (4)(a) to (f), and the matter set out in paragraph (4)(g); and

(ii) such other matters (if any) as the issuing officer considers relevant;

it is reasonably necessary that a constable should conduct an ordinary search or a frisk search of the person for the purposes of:

(iii) the protection of 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; or

(vi) determining whether the control order has been, or is being, complied with.

(4) The matters referred to in subparagraph (2)(b)(i) are the following:

(a) the possibility that the person has engaged, is engaging, or will engage, in a terrorist act;

(b) the possibility that the person has provided, is providing, or will provide, support for a terrorist act;

(d) the possibility that the person has provided, is providing, or will provide, support for the engagement in a hostile activity in a foreign country;

(e) the possibility that the person has facilitated, is facilitating, or will facilitate, the engagement in a hostile activity in a foreign country;

(f) the possibility that the person has contravened, is contravening, or will contravene, the control order;

(g) whether allowing one or more constables to conduct an ordinary search or a frisk search of the person, and exercise the monitoring powers in relation to the person and the powers set out in section 3ZZLC in relation to the person or a recently used conveyance, would be likely to have the least interference with any person's liberty and privacy that is necessary in the circumstances.

Content of warrant

(5) The warrant must:

(a) state the name of the person; and

(b) state that the warrant is issued under this section; and

(d) authorise a constable (whether or not named in the warrant) from time to time while the warrant remains in force:

(i) to conduct an ordinary search or a frisk search of the person; and

(ii) to exercise the monitoring powers in relation to the person; and

(iii) to exercise the powers set out in section 3ZZLC in relation to the person or a recently used conveyance; and

(e) state whether the search is authorised to be carried out at any time of the day or during specified hours of the day; and

(f) specify the time at which the warrant expires (see subsection (7)); and

(g) state that a person who is not a constable may be authorised under section 3ZZLD to assist in executing the warrant; and

(h) state the name of the person to whom the relevant control order relates; and

(i) state that the control order is in force; and

(j) state whether the control order is an interim control order or a confirmed control order; and

(k) specify the date the control order was made; and

(l) specify the court that made the control order; and

(m) if the control order is an interim control order - specify the date on which the order was served on the person; and

(n) if the control order is a confirmed control order - specify the end of the period during which the order is in force; and

(o) if the warrant is issued for the purposes of determining whether the control order has been, or is being, complied with - specify the obligations, prohibitions and restrictions that are imposed by the order.

Example: If a warrant is issued at 3 pm on a Monday, the expiry time specified must not be later than midnight on Monday in the following week.

(8) Paragraph (5)(f) and subsection (7) do not prevent the issue of successive monitoring warrants in relation to the same person.

3ZZOC Restrictions on personal searches

A monitoring warrant cannot authorise a strip search or a search of a person's body cavities.

3ZZOD Monitoring warrant must not be executed if the relevant control order is revoked etc.

(1) If:

(a) a monitoring warrant was issued on the basis that a control order was in force in relation to a person; and

(b) any of the following happens:

(i) the control order is revoked;

(ii) a court declares the control order to be void;

(iii) a court varies the control order by removing one or more obligations, prohibitions or restrictions imposed on the person by the control order;

a constable must not:

(d) exercise a power under Division 2 or 3, if the exercise of the power is consequential on the warrant.

Evidence

(2) A thing seized in breach of subsection (1) is not admissible in evidence in criminal proceedings other than proceedings covered by paragraph 3ZQU(1)(j).

(3) Information obtained in breach of subsection (1) is not admissible in evidence in criminal proceedings other than proceedings covered by paragraph 3ZQU(1)(j).

(4) A document obtained in breach of subsection (1) is not admissible in evidence in criminal proceedings other than proceedings covered by paragraph 3ZQU(1)(j).

Division 6 - Monitoring warrants by telephone or other electronic means

3ZZPA Monitoring warrants by telephone or other electronic means

(1) A constable may make an application to an issuing officer for a monitoring warrant by telephone, telex, fax or other electronic means:

(a) in an urgent case; or

(b) if the delay that would occur if an application were made in person would frustrate the effective execution of the warrant.

(2) The issuing officer:

(a) may require communication by voice to the extent that it is practicable in the circumstances; and

(b) may make a recording of the whole or any part of any such communication by voice.

(3) An application under this section must include all information required to be provided in an ordinary application for a monitoring warrant, but the application may, if necessary, be made before the information is sworn.

(4) If an application is made to an issuing officer under this section and the issuing officer, after considering the information and having received and considered such further information (if any) as the issuing officer required, is satisfied that:

(a) a monitoring warrant in the terms of the application should be issued urgently; or

(b) the delay that would occur if an application were made in person would frustrate the effective execution of the warrant;

the issuing officer may complete and sign the same form of warrant that would be issued under section 3ZZOA or 3ZZOB, as the case requires.

(5) If the issuing officer decides to issue the monitoring warrant, the issuing officer is to inform the applicant, by telephone, telex, fax or other electronic means, of the terms of the warrant and the day on which, and the time at which, it was signed.

(6) The applicant must then complete a form of monitoring warrant in terms substantially corresponding to those given by the issuing officer, stating on the form the name of the issuing officer and the day on which, and the time at which, the warrant was signed.

(7) The applicant must, not later than the day after the day of expiry of the warrant or the day after the day on which the warrant was executed, whichever is the earlier, give or transmit to the issuing officer the form of warrant completed by the applicant and, if the information referred to in subsection (3) was not sworn, that information duly sworn.

(8) The issuing officer is to attach to the documents provided under subsection (7) the form of warrant completed by the issuing officer.

(9) If:

(a) it is material, in any proceedings, for a court to be satisfied that the exercise of a power under a monitoring warrant issued under this section was duly authorised; and

(b) the form of warrant signed by the issuing officer is not produced in evidence;

the court is to assume, unless the contrary is proved, that the exercise of the power was not duly authorised.

3ZZPB Offences relating to telephone warrants

A person commits an offence if:

(a) the person states in a document that purports to be a form of warrant under section 3ZZPA the name of an issuing officer unless that officer issued the warrant; or

(b) the person states on a form of warrant under that section a matter that, to the person's knowledge, departs in a material particular from the form authorised by the issuing officer; or

(c) the person purports to execute, or present to a person, a document that purports to be a form of warrant under that section that the person knows:

(i) has not been approved by an issuing officer under that section; or

(ii) to depart in a material particular from the terms authorised by an issuing officer under that section; or

(d) the person gives to an issuing officer a form of warrant under that section that is not the form of warrant that the person purported to execute.

Penalty: Imprisonment for 2 years.

Division 7 - Extension of periods in which things secured

3ZZQA Extension of periods in which things secured

Application

(1) This section applies if a constable applies to an issuing officer under subsection 3ZZKD(5) for an extension of the period during which a thing may be secured.

Granting extension

(2) The issuing officer may, by order, grant an extension of the period if the issuing officer is satisfied, by information on oath or affirmation, that it is necessary to secure the thing to ensure that relevant data is not destroyed, altered or otherwise interfered with.

(3) The issuing officer must not grant the extension unless the constable or some other person has given to the issuing officer, either orally or by affidavit, such further information (if any) as the issuing officer requires concerning the grounds on which the extension is being sought.

Content of order

(4) The order extending the period must:

(a) describe the thing to which the order relates; and

(b) state the period for which the extension is granted; and

(d) state that the constable is authorised to secure the thing for that period.

Division 8 - Things seized, documents produced, and answers given, under this Part

3ZZRA Receipts for things seized under this Part

(1) If a thing is seized by a constable under this Part, the constable must provide a receipt for the thing.

(2) If 2 or more things are seized, they may be covered in the one receipt.

3ZZRB Using, sharing and returning things seized under this Part

Division 4C of Part IAA applies to a thing seized under this Part in a corresponding way to the way in which it applies to a thing seized under Division 2 of Part IAA.

3ZZRC Using, sharing and returning documents produced under section 3ZZKE

(1) Subject to subsection (2), Division 4C of Part IAA applies to a document produced under section 3ZZKE in a corresponding way to the way in which it applies to a document produced under Division 4B of Part IAA.

(2) Section 3ZQU has effect, in relation to a document produced under section 3ZZKE, as if the following additional purposes were set out in subsection 3ZQU(1):

(a) the protection of the public from a terrorist act;

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

(c) preventing the provision of support for, or the facilitation of, the engagement in a hostile activity in a foreign country;

(d) determining whether the relevant control order has been, or is being, complied with.

3ZZRD Answers to questions asked under section 3ZZKE

An answer given to a question asked under subsection 3ZZKE(2) or (3) may only be used for one or more of the following purposes:

(a) the protection of the public from a terrorist act;

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

(c) preventing the provision of support for, or the facilitation of, the engagement in a hostile activity in a foreign country;

(d) determining whether the relevant control order has been, or is being, complied with;

(e) preventing, investigating or prosecuting an offence.

Division 9 - Powers of issuing officers

3ZZSA Powers of issuing officers

Powers conferred personally

(1) A power conferred on an issuing officer by this Part is conferred on the issuing officer:

(a) in a personal capacity; and

(b) not as a court or a member of a court.

Powers need not be accepted

(2) The issuing officer need not accept the power conferred.

Protection and immunity

(3) An issuing officer exercising a power conferred by this Part has the same protection and immunity as if the issuing officer were exercising the power:

(a) as the court of which the issuing officer is a member; or

(b) as a member of the court of which the issuing officer is a member.

Division 10 - General

3ZZTA Conduct of ordinary searches and frisk searches

An ordinary search or a frisk search of a person under this Part must, if practicable, be conducted by a person of the same sex as the person being searched.

3ZZTB Protection of persons - control order declared to be void

(1) If:

(a) a monitoring warrant was issued on the basis that an interim control order was in force; and

(b) a court subsequently declares the interim control order to be void;

a criminal proceeding does not lie against a person in respect of anything done, or omitted to be done, in good faith by the person:

(d) in the purported exercise of a power, or the purported performance of a function or duty, in a case where the purported exercise of the power, or the purported performance of the function or duty, is consequential on the warrant.

(2) Subsection (1) does not apply to a thing done, or omitted to be done, at a particular time if, at that time, the person knew, or ought reasonably to have known, of the declaration.

3ZZTC Dealing with things, information or documents obtained under a monitoring warrant - control order declared to be void

Scope

(1) This section applies if:

(a) a monitoring warrant was issued on the basis that an interim control order was in force; and

(b) a court subsequently declares the interim control order to be void; and

(c) before the declaration was made, a thing was seized, information was obtained, or a document was produced, as a result of:

(i) the purported execution of the warrant; or

(ii) the purported exercise of a power, or the purported performance of a function or duty, in a case where the purported exercise of the power, or the purported performance of the function or duty, is consequential on the warrant.

Dealing

(2) A person may:

(a) adduce the thing, information or document as evidence in a proceeding; or

(b) use or communicate the information; or

if:

(d) the person reasonably believes that doing so is necessary to assist in preventing, or reducing the risk of:

(i) the commission of a terrorist act; or

(ii) serious harm to a person; or

(iii) serious damage to property; or

(e) the person does so for one or more purposes set out in subsection (3).

Purposes

(3) The purposes are purposes connected with:

(a) the performance of a function or duty, or the exercise of a power, by a person, court, tribunal or other body under, or in relation to a matter arising under, Division 105 of the Criminal Code, so far as the function, duty or power relates to a preventative detention order (within the meaning of Part 5.3 of the Criminal Code); or

(b) the performance of a function or duty, or the exercise of a power, by a person, court, tribunal or other body under, or in relation to a matter arising under, Part 2A of the Terrorism (Police Powers) Act 2002 (NSW), so far as the function, duty or power relates to a preventative detention order (within the meaning of that Part); or

(c) the performance of a function or duty, or the exercise of a power, by a person, court, tribunal or other body under, or in relation to a matter arising under, Part 2A of the Terrorism (Community Protection) Act 2003 (Vic.), so far as the function, duty or power relates to a preventative detention order (within the meaning of that Part); or

(d) the performance of a function or duty, or the exercise of a power, by a person, court, tribunal or other body under, or in relation to a matter arising under, the Terrorism (Preventative Detention) Act 2005 (Qld), so far as the function, duty or power relates to a preventative detention order (within the meaning of that Act); or

(e) the performance of a function or duty, or the exercise of a power, by a person, court, tribunal or other body under, or in relation to a matter arising under, the Terrorism (Preventative Detention) Act 2006 (WA), so far as the function, duty or power relates to a preventative detention order (within the meaning of that Act); or

(f) the performance of a function or duty, or the exercise of a power, by a person, court, tribunal or other body under, or in relation to a matter arising under, the Terrorism (Preventative Detention) Act 2005 (SA), so far as the function, duty or power relates to a preventative detention order (within the meaning of that Act); or

(g) the performance of a function or duty, or the exercise of a power, by a person, court, tribunal or other body under, or in relation to a matter arising under, the Terrorism (Preventative Detention) Act 2005 (Tas.), so far as the function, duty or power relates to a preventative detention order (within the meaning of that Act); or

(h) the performance of a function or duty, or the exercise of a power, by a person, court, tribunal or other body under, or in relation to a matter arising under, Part 2 of the Terrorism (Extraordinary Temporary Powers) Act 2006 (ACT), so far as the function, duty or power relates to a preventative detention order (within the meaning of that Part); or

(i) the performance of a function or duty, or the exercise of a power, by a person, court, tribunal or other body under, or in relation to a matter arising under, Part 2B of the Terrorism (Emergency Powers) Act (NT), so far as the function, duty or power relates to a preventative detention order (within the meaning of that Part).

Definition

(4) In this section:

serious harm has the same meaning as in the Criminal Code.

3ZZTD Commissioner to keep documents connected with issue of monitoring warrants

The Commissioner must cause to be kept in the Australian Federal Police's records:

(a) each monitoring warrant issued to the Australian Federal Police; and

(b) each instrument revoking a monitoring warrant; and

3ZZTE Commissioner to notify Ombudsman in relation to monitoring warrants

(1) Within 6 months after a monitoring warrant is issued in response to an application by the Australian Federal Police, the Commissioner must:

(a) notify the Ombudsman that the warrant has been issued; and

(b) give to the Ombudsman a copy of the warrant.

(2) As soon as practicable after a member or special member of the Australian Federal Police has contravened a provision of this Part or of a monitoring warrant, the Commissioner must notify the Ombudsman of the contravention.

(3) A failure to comply with subsection (1) or (2) does not affect the validity of a monitoring warrant.

Division 11 - Inspections by Ombudsman

3ZZUA Appointment of inspecting officers

(1) The Ombudsman may appoint members of the Ombudsman's staff to be inspecting officers for the purposes of this Division.

(2) An appointment under subsection (1) must be in writing.

3ZZUB Inspection of records by the Ombudsman

(1) The Ombudsman may inspect the records of the Australian Federal Police to determine the extent of compliance by the Australian Federal Police and members and special members of the Australian Federal Police with the provisions of:

(a) this Part; or

(b) monitoring warrants.

(2) For the purpose of an inspection under this section, the Ombudsman:

(a) may, after notifying the Commissioner, enter at any reasonable time premises occupied by the Australian Federal Police; and

(b) is entitled to have full and free access at all reasonable times to all records of the Australian Federal Police that are relevant to the inspection; and

(c) may require a staff member of the Australian Federal Police to give the Ombudsman any information that the Ombudsman considers necessary, being information that is in the staff member's possession, or to which the staff member has access, and that is relevant to the inspection.

(3) The Commissioner must ensure that staff members of the Australian Federal Police give the Ombudsman any assistance the Ombudsman reasonably requires to enable the Ombudsman to perform functions under this section.

3ZZUC Power to obtain relevant information

(1) If the Ombudsman has reasonable grounds to believe that a staff member of the Australian Federal Police is able to give information relevant to an inspection under this Division, subsections (2) and (3) have effect.

(2) The Ombudsman may, by writing given to the staff member, require the staff member to give the information to the Ombudsman:

(a) by writing signed by the staff member; and

(b) at a specified place and within a specified period.

(3) The Ombudsman may, by writing given to the staff member, require the staff member to attend:

(a) before a specified inspecting officer; and

(b) at a specified place; and

to answer questions relevant to the inspection.

(4) If the Ombudsman:

(a) has reasonable grounds to believe that a staff member of the Australian Federal Police is able to give information relevant to an inspection under this Division; and

(b) does not know the staff member's identity;

the Ombudsman may, by writing given to the Commissioner, require the Commissioner, or a person nominated by the Commissioner, to attend:

(d) at a specified place; and

(e) within a specified period or at a specified time on a specified day;

to answer questions relevant to the inspection.

(5) The place, and the period or the time and day, specified in a requirement under this section, must be reasonable having regard to the circumstances in which the requirement is made.

3ZZUD Offence

A person commits an offence if:

(a) the person is required under section 3ZZUC to attend before another person, to give information or to answer questions; and

(b) the person refuses or fails to do so.

Penalty: Imprisonment for 6 months.

3ZZUE Ombudsman to be given information etc. despite other laws

(1) Despite any other law, a person is not excused from giving information, answering a question, or giving access to a document, as and when required under this Division, on the ground that giving the information, answering the question, or giving access to the document, as the case may be:

(a) would contravene a law; or

(b) would be contrary to the public interest; or

(d) would disclose one of the following:

(i) a legal advice given to a Minister or a Department, or a prescribed authority (within the meaning of the Ombudsman Act 1976);

(ii) a communication between an officer of a Department or of a prescribed authority (within the meaning of the Ombudsman Act 1976) and another person or body, being a communication protected against disclosure by legal professional privilege.

(2) However, if the person is a natural person:

(a) the information, the answer, or the fact that the person has given access to the document, as the case may be; and

(b) any information or thing (including a document) obtained as a direct or indirect consequence of giving the information, answering the question or giving access to the document;

are not admissible in evidence against the person except in a proceeding by way of a prosecution for an offence against Part 7.4 or 7.7 of the Criminal Code.

(3) Nothing in any other law prevents a staff member of the Australian Federal Police from:

(a) giving information to the Ombudsman or an inspecting officer (whether orally or in writing and whether or not in answer to a question); or

(b) giving access to a record of the Australian Federal Police to the Ombudsman or an inspecting officer;

for the purposes of an inspection under this Division.

(4) Nothing in any other law prevents a staff member of the Australian Federal Police from making a record of information, or causing a record of information to be made, for the purposes of giving the information to a person as permitted by subsection (3).

(5) The fact that a person is not excused under subsection (1) from giving information, answering a question or producing a document does not otherwise affect a claim of legal professional privilege that anyone may make in relation to that information, answer or document.

3ZZUF Exchange of information between Ombudsman and State or Territory inspecting authorities

(1) The Ombudsman may give information that:

(a) relates to a State or Territory agency; and

(b) was obtained by the Ombudsman under this Division;

to the State or Territory inspecting authority in relation to the agency.

(2) The Ombudsman may only give information to an authority under subsection (1) if the Ombudsman is satisfied that the giving of the information is necessary to enable the authority to perform its functions in relation to the State or Territory agency.

(3) The Ombudsman may receive from a State or Territory inspecting authority information relevant to the performance of the Ombudsman's functions under this Division.

(4) In this Part:

State or Territory agency means the police force or police service of a State or Territory.

State or Territory inspecting authority , in relation to a State or Territory agency, means the authority that, under the law of the State or Territory concerned, has the function of making inspections of a similar kind to those provided for in section 3ZZUB.

3ZZUG Ombudsman not to be sued

(1) The Ombudsman, an inspecting officer, or a person acting under an inspecting officer's direction or authority, is not liable to an action, suit or proceeding for or in relation to an act done, or omitted to be done, in good faith in the performance or exercise, or the purported performance or exercise, of a function or power conferred by this Division.

(2) A reference in this section to the Ombudsman includes a reference to a Deputy Ombudsman or a delegate of the Ombudsman.

3ZZUH Annual report

(1) The Ombudsman must, as soon as practicable after the end of each financial year, prepare and give to the Minister a report on the results of any inspections under section 3ZZUB in the year.

Note: The report is included in a report under section 104.29 of the Criminal Code.

(2) The report must include the number of contraventions by the Australian Federal Police and members and special members of the Australian Federal Police of the provisions of:

(a) this Part; or

(b) monitoring warrants;

identified by the Ombudsman in the year.

(3) The Ombudsman must give a copy of a report under this section to the Commissioner.

(4) A report under this section must not include information which, if made public, could reasonably be expected to:

(a) endanger a person's safety; or

(b) prejudice an investigation, or prosecution, of an offence; or

(i) the Australian Federal Police; or

(ii) any other Commonwealth, State, Territory or foreign law enforcement, intelligence or security agency.

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