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
59 Section 105A.3 of the Criminal Code
Repeal the section, substitute:
105A.3 Who a post-sentence order may apply to and effect of post-sentence orders
(1) A post-sentence order may be made under section 105A.7 or 105A.7A in relation to a person (the terrorist offender ) if:
(a) the person has been convicted of:
(i) an offence against Subdivision A of Division 72 (international terrorist activities using explosive or lethal devices); or
(ii) a serious Part 5.3 offence; or
(iii) an offence against Part 5.5 (foreign incursions and recruitment), except an offence against subsection 119.7(2) or (3) (publishing recruitment advertisements); or
(iv) an offence against the repealed Crimes (Foreign Incursions and Recruitment) Act 1978, except an offence against paragraph 9(1)(b) or (c) of that Act (publishing recruitment advertisements); and
(b) a subsection of section 105A.3A provides that the order may be made in relation to the person; and
(c) the person will be at least 18 years old when the sentence for the conviction referred to in paragraph (a) of this subsection ends.
Note: Before making the order, a Court must be satisfied of certain matters under section 105A.7 or 105A.7A.
Effect of continuing detention order
(2) The effect of a continuing detention order is to commit the person to detention in a prison for the period the order is in force.
Note 1: The period must not be more than 3 years (see subsection 105A.7(5)).
Note 2: See also:
(a) section 105A.18C (effect of detention on post-sentence order); and
(b) subsection 105A.21(2) (arrangements with States and Territories); and
(c) section 105A.24 (effect of continuing detention orders on bail or parole laws).
Effect of an extended supervision order
(3) The effect of an extended supervision order is to impose on the person, for the period the order is in force, conditions contravention of which is an offence.
Note 1: The period must not be more than 3 years (see paragraph 105A.7A(4)(d)).
Note 2: See also section 105A.18C (effect of detention on post-sentence order).
105A.3A Preconditions for post-sentence orders
Post-sentence orders - person imprisoned for paragraph 105A.3(1)(a) offence
(1) A post-sentence order may be made in relation to a person if the person is detained in custody in a prison serving a sentence of imprisonment for an offence referred to in paragraph 105A.3(1)(a).
Post-sentence orders - continuing detention order in force
(2) A post-sentence order may be made in relation to a person if a continuing detention order or interim detention order is in force in relation to the person.
Post-sentence orders - person imprisoned for other offences
(3) A post-sentence order may be made in relation to a person if:
(a) the person is detained in custody in a prison serving a sentence of imprisonment for an offence other than an offence referred to in paragraph 105A.3(1)(a); and
(b) either:
(i) the person has been continuously detained in custody in a prison since being convicted of the offence referred to in paragraph 105A.3(1)(a); or
(ii) the person has been continuously detained in custody in a prison since a continuing detention order or interim detention order was in force in relation to the person.
Note: For the definition of detained in custody in a prison , see subsection 100.1(1).
(4) A post-sentence order may be made in relation to a person if:
(a) the person is detained in custody in a prison serving a sentence of imprisonment for an offence against section 105A.18A or subsection 105A.18B(1) (offences relating to extended supervision orders and interim supervision orders); and
(b) the person was charged with the offence before the later of:
(i) the relevant extended supervision order or interim supervision order ceasing to be in force; and
(ii) the end of 6 months after the conduct constituting the offence; and
(c) the Court making the post-sentence order is satisfied, as a result of the offence referred to in paragraph (a), that the person poses an unacceptable risk of committing a serious Part 5.3 offence.
(5) A post-sentence order may be made in relation to a person if:
(a) the person served a sentence of imprisonment for an offence referred to in paragraph 105A.3(1)(a); and
(b) before the person was released from custody in a prison:
(i) the AFP Minister's consent to a request for an interim control order was sought under section 104.2; or
(ii) a request for an interim control order was made under section 104.6; and
(c) the interim control order was made as a result of the request; and
(d) the person is detained in custody in a prison serving a sentence of imprisonment for an offence against section 104.27 or subsection 104.27A(1) (offences relating to control orders) in relation to:
(i) the interim control order; or
(ii) the control order that resulted from confirming the interim control order; and
(e) the person was charged with the offence referred to in paragraph (d) before the later of:
(i) the order referred to in that paragraph ceased to be in force; and
(ii) the end of 6 months after the conduct constituting the offence; and
(f) the Court making the post-sentence order is satisfied, as a result of the offence referred to in paragraph (d), that the person poses an unacceptable risk of committing a serious Part 5.3 offence.
Supervision orders - supervision order in force
(6) An extended supervision order or interim supervision order may be made in relation to a person if an extended supervision order or interim supervision order is in force in relation to the person.
Supervision orders - person imprisoned for other offences
(7) An extended supervision order or interim supervision order may be made in relation to a person if:
(a) the person is detained in custody in a prison serving a sentence of imprisonment for an offence other than the offence referred to in paragraph 105A.3(1)(a); and
(b) at the beginning of the person's detention in custody in a prison, an extended supervision order or interim supervision order was in force in relation to the person.
Note: Paragraph (a) - an offence against section 105A.18A or subsection 105A.18B(1) (relating to an extended supervision order or interim supervision order) is an example of an offence other than the offence referred to in paragraph 105A.3(1)(a).
Supervision orders - control orders requested before commencement
(8) An extended supervision order or interim supervision order may be made in relation to a person if:
(a) the person served a sentence of imprisonment for an offence referred to in paragraph 105A.3(1)(a); and
(b) before the person was released from custody in a prison, and before the commencement of this subsection:
(i) the AFP Minister's consent to a request for an interim control order was sought under section 104.2; or
(ii) a request for an interim control order was made under section 104.6; and
(c) either:
(i) the interim control order is in force; or
(ii) the interim control order was confirmed and the confirmed control order is in force.
Interpretation
(9) To avoid doubt, subsection (3) applies:
(a) whether the offence for which the person is serving the sentence of imprisonment is an offence against a law of the Commonwealth, a State or a Territory; and
(b) whether the sentence served for the offence referred to in paragraph 105A.3(1)(a) was served concurrently or cumulatively, or both, with:
(i) the sentence referred to in paragraph (3)(a) of this section; or
(ii) any of the other sentences served by the person since being convicted of the offence referred to in paragraph 105A.3(1)(a) (the other sentences ); and
(c) whether the sentence referred to in paragraph (3)(a) of this section or the other sentences were imposed before or after, or at the same time as, the sentence for the offence referred to in paragraph 105A.3(1)(a); and
(d) whether or not the person has been continuously serving a sentence of imprisonment for an offence since being convicted of the offence referred to in paragraph 105A.3(1)(a).
(10) To avoid doubt, subsection (7) applies whether the offence for which the person is serving the sentence of imprisonment is an offence against a law of the Commonwealth, a State or a Territory.