Counter-Terrorism and Other Legislation Amendment Act 2023 (96 of 2023)

Schedule 2   Amendment of the Criminal Code Act 1995 etc.

Part 1   Counter-terrorism amendments

Division 1   Main amendments

Criminal Code Act 1995

11   Section 104.5A of the Criminal Code

Repeal the section, substitute:

104.5A Conditions of an interim control order

General conditions

(1) Without limiting the conditions that the issuing court may impose on the person by the order, those conditions may relate to any of the following:

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

(c) that the person remain at specified premises between specified times each day, or on specified days, subject to subsection (5);

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

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

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

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

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

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

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

(n) that the person 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 person 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 person 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 person provide specified information to a specified authority within a specified period or before a specified event;

(r) that the person comply with any reasonable direction given to the person 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 subsections (9) and (10) and section 100.1 in relation to references to premises, reside or residence, and work.

Conditions relating to monitoring and enforcement

(2) Without limiting the conditions that the issuing court may impose on the person by the order, those conditions may also relate to any of the following:

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

(b) that the person allow themselves to be photographed by a specified authority;

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

(d) that the person 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 person attend at places, and report to persons, at times, specified:

(i) in the order; or

(ii) by a specified authority;

(g) that the person allow visits at specified premises from, and entry to specified premises by, a specified authority at any time for the purpose of ensuring the person's compliance with a condition imposed in accordance with paragraph (1)(c);

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

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

(i) search the person; and

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

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

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

(j) that the person 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 person, for the purposes of a police officer searching and seizing any such equipment or accessing such data (or both).

Note 1: For paragraphs (2)(b) and (c), restrictions apply to the use of photographs or impressions of fingerprints (see section 104.5C).

Note 2: For paragraph (2)(d), see also section 104.5D (obligations relating to monitoring devices).

(3) A power exercised under a condition imposed in accordance with subsection (2) (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.

Directions

(4) If a condition imposed on the person by 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 104.1).

Limitations

(5) A condition imposed on the person by the order must not require the person to remain at specified premises for more than 12 hours within any 24 hours.

(6) If the person is subject to an order under a law of a State or Territory that is equivalent to a control order, the issuing court must consider the conditions under that State or Territory order in imposing conditions on the person by the order.

General rules about conditions

(7) To avoid doubt, without limiting subsection 33(3A) of the Acts Interpretation Act 1901, a condition imposed on the person by the order may:

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

(b) impose restrictions and obligations on the person 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 (1) - impose restrictions and obligations on the person in relation to that conduct instead of prohibiting that conduct; or

(e) for conduct described in a paragraph of subsection (1) or (2) - impose different restrictions, obligations and prohibitions in relation to that conduct.

Access to lawyers

(8) This section does not affect the person's right to contact, communicate or associate with the person's lawyer unless the person's lawyer is an individual covered by the condition in paragraph (1)(h). If the person's lawyer is so specified, the person may contact, communicate or associate with any other lawyer who is not so specified.

References to work

(9) In subsection (1), a reference to work includes a reference to voluntary work.

Meaning of premises

(10) In this section:

premises includes a place, an aircraft, a vehicle and a vessel.

104.5B Conditions where exemptions may be granted

(1) The issuing court 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 person may apply for a temporary exemption.

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

(4) The person 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 person so applies, the specified authority may:

(a) require further information to be provided by the person 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.

104.5C Treatment of photographs and impressions of fingerprints

(1) If the issuing court, by the order, imposes on the person a condition referred to in paragraph 104.5A(2)(b) or (c), a photograph, or an impression of fingerprints, taken of or from the person in accordance with the order must be used only for the purpose of ensuring compliance with the order.

(2) If:

(a) no control order has been in force in relation to the person for 12 months; and

(b) either:

(i) no proceedings relating to a control order relating to the person were on foot in that 12-month period; or

(ii) proceedings relating to a control order relating to the person were discontinued or completed within that 12-month period;

the photograph or the impression must be destroyed as soon as practicable after the end of 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.

104.5D Obligations relating to monitoring devices

Additional obligations on person

(1) If the issuing court, by the order, imposes on the person the condition referred to in paragraph 104.5A(2)(d) (the monitoring condition ) that the person wear a monitoring device, then:

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

(b) the order must include the condition referred to in paragraph 104.5A(2)(e); and

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

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

(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 person 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 monitoring condition in the order, the issuing court must also include in the order an authorisation for:

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

(b) any of the following events occurs:

(i) the monitoring condition is removed from the order;

(ii) the order ceases to be in force;

(iii) the person is detained in custody;

the device and any related monitoring equipment may be removed in accordance with paragraph (2)(d) or (e) even though no authorisation under subsection (2) is in force.

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 person:

(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 person 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 person's residence in order to take the action.

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