Criminal Code Act 1995

Schedule - The Criminal Code

Section 3

CHAPTER 5 - THE SECURITY OF THE COMMONWEALTH

Part 5.3 - Terrorism

Division 105A - Post-sentence orders

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Subdivision B - Post-sentence orders

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SECTION 105A.3 Who a post-sentence order may apply to and effect of post-sentence orders

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(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(iv) an offence against the repealed Crimes (Foreign Incursions and Recruitment) Act 1978 , except an offence against paragraph 9(1)(b) or (c) of that Act (publishing recruitment advertisements);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:

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).

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History

S 105A.3 substituted by No 131 of 2021, s 3 and Sch 1 item 59, effective 9 December 2021. S 105A.3 formerly read:

SECTION 105A.3 Who a continuing detention order may apply to and effect of an order
(1)
A continuing detention order may be made under section 105A.7 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

(iii) a serious Part 5.3 offence; or

(iv) an offence against Part 5.5 (foreign incursions and recruitment), except an offence against subsection 119.7(2) or (3) (publishing recruitment advertisements); or

(v) 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) any of the following applies:

(i) the person is detained in custody and serving a sentence of imprisonment for the offence;

(ia) the person is detained in custody and serving a sentence of imprisonment for an offence other than the offence referred to in paragraph (a), and has been continuously detained in custody since being convicted of the offence referred to in that paragraph;

(ii) a continuing detention order or interim detention order is in force in relation to the person; and

(c) if subparagraph (b)(i) applies - the person will be at least 18 years old when the sentence referred to in that subparagraph ends; and

(d) if subparagraph (b)(ia) applies - the person will be at least 18 years old when the sentence referred to in that subparagraph ends.
Note:

Before making the order, a Court must be satisfied of certain matters under section 105A.7.

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History

S 105A.3(1) amended by No 119 of 2019, s 3 and Sch 2 items 3 - 6, by substituting " any of the following applies " for " either " in para (b), " ; " for " ; or " in para (b)(i), inserting para (b)(ia) and substituting para (c), effective 12 December 2019. Para (c) formerly read:

(c) if subparagraph (b)(i) applies - the person will be at least 18 years old when the sentence ends.

(1A)
To avoid doubt, subparagraph (1)(b)(ia) 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 (1)(a) was served concurrently or cumulatively, or both, with:

(i) the sentence referred to in subparagraph (1)(b)(ia); or

(ii) any of the other sentences served by the person since being convicted of the offence referred to in paragraph (1)(a) (the other sentences ); and

(c) whether the sentence referred to in subparagraph (1)(b)(ia) or the other sentences were imposed before or after, or at the same time as, the sentence for the offence referred to in paragraph (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 (1)(a).
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History

S 105A.3(1A) inserted by No 119 of 2019, s 3 and Sch 2 item 7, effective 12 December 2019.

(2)
The effect of the order is to commit the offender 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:

An arrangement with a State or Territory must be in force for an offender to be detained at a prison of the State or Territory (see subsection 105A.21(2)).

Note 3:

The offender may not be eligible to be released on bail or parole while the continuing detention order is in force (see section 105A.24).

S 105A.3 inserted by No 95 of 2016, s 3 and Sch 1 item 1, effective 7 June 2017.

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