Schedule
-
The Criminal Code
Section
3
CHAPTER 5
-
THE SECURITY OF THE COMMONWEALTH
Part 5.3
-
Terrorism
Division 105A
-
Post-sentence orders
History
Div 105A heading substituted by No 131 of 2021, s 3 and Sch 1 item 49, effective 9 December 2021. The heading formerly read:
Division 105A
-
Continuing detention orders
Div 105A inserted by No 95 of 2016, s 3 and Sch 1 item 1, effective 7 June 2017.
Subdivision C
-
Making post-sentence orders
History
Subdiv C heading substituted by No 131 of 2021, s 3 and Sch 1 item 60, effective 9 December 2021. The heading formerly read:
Subdivision C
-
Making a continuing detention order
Subdiv C inserted by No 95 of 2016, s 3 and Sch 1 item 1, effective 7 June 2017.
SECTION 105A.5
Applying for a post-sentence order
(1)
The AFP Minister, or a legal representative of the AFP Minister, (the
applicant
) may apply to a Supreme Court of a State or Territory for either of the following:
(a)
a continuing detention order in relation to a terrorist offender;
(b)
an extended supervision order in relation to a terrorist offender.
Note:
The court may make an extended supervision order under section
105A.7A
even if a continuing detention order is applied for.
History
S 105A.5(1) substituted by No 131 of 2021, s 3 and Sch 1 item 62, effective 9 December 2021. S 105A.5(1) formerly read:
(1)
The AFP Minister, or a legal representative of the AFP Minister, (the
applicant
) may apply to a Supreme Court of a State or Territory for a continuing detention order in relation to a terrorist offender.
S 105A.5(1) amended by No 31 of 2018, s 3 and Sch 2 item 114(15), by substituting
"
AFP Minister
"
for
"
Attorney-General
"
(wherever occurring), effective 11 May 2018. For transitional rules, see note under s
72.28
.
(2)
However, the application may not be made more than 12 months before the end of:
(a)
a sentence of imprisonment referred to in subsection
105A.3A(1)
or paragraph
105A.3A(3)(a)
,
(4)(a)
,
(5)(d)
or
(7)(a)
; or
(b)
if a post-sentence order is in force in relation to the offender
-
the period for which the order is in force; or
(c)
if subsection
105A.3A(8)
applies in relation to the offender
-
the period the interim control order referred to in subparagraph
105A.3A(8)(c)(i)
or confirmed control order referred to in subparagraph
105A.3A(8)(c)(ii)
is in force.
History
S 105A.5(2) amended by No 131 of 2021, s 3 and Sch 1 items 63
-
65, by substituting para (a),
"
post-sentence order
"
for
"
continuing detention order
"
in para (b) and inserting para (c), effective 9 December 2021. Para (a) formerly read:
(a)
a sentence of imprisonment referred to in:
(i)
subparagraph 105A.3(1)(b)(i); or
(ii)
subparagraph 105A.3(1)(b)(ia);
that the offender is serving, at the end of which the offender would be required to be released into the community; or
S 105A.5(2) amended by No 119 of 2019, s 3 and Sch 2 item 8, by substituting para (a), effective 12 December 2019. Para (a) formerly read:
(a)
a sentence of imprisonment referred to in subparagraph 105A.3(1)(b)(i) that the offender is serving, at the end of which the offender would be required to be released into the community; or
(2AA)
To avoid doubt, if both paragraphs
(2)(a)
and
(b)
apply in relation to a terrorist offender, the application may be made in accordance with either paragraph (even though the other paragraph may prevent an application from being made in relation to the offender).
History
S 105A.5(2AA) inserted by No 131 of 2021, s 3 and Sch 1 item 66, effective 9 December 2021.
(2A)
The AFP Minister must ensure that reasonable inquiries are made to ascertain any facts known to any Commonwealth law enforcement officer or intelligence or security officer that would reasonably be regarded as supporting a finding that:
(a)
if the application is for a continuing detention order
-
neither a continuing detention order nor an extended supervision order should be made in relation to the offender; or
(b)
if the application is for an extended supervision order
-
the extended supervision order should not be made in relation to the offender.
History
S 105A.5(2A) substituted by No 131 of 2021, s 3 and Sch 1 item 67, effective 9 December 2021. S 105A.5(2A) formerly read:
(2A)
The AFP Minister must ensure that reasonable inquiries are made to ascertain any facts known to any Commonwealth law enforcement officer or intelligence or security officer that would reasonably be regarded as supporting a finding that the order should not be made.
S 105A.5(2A) amended by No 31 of 2018, s 3 and Sch 2 item 114(15), by substituting
"
AFP Minister
"
for
"
Attorney-General
"
, effective 11 May 2018. For transitional rules, see note under s
72.28
.
Content of application
(3)
The application must:
(a)
include any report or other document that the applicant intends, at the time of the application, to rely on in relation to the application; and
(aa)
include:
(i)
a copy of any material in the possession of the applicant; and
(ii)
a statement of any facts that the applicant is aware of;
that would reasonably be regarded as supporting a finding that the order or orders mentioned in paragraph
(2A)(a)
or
(b)
(as the case requires) should not be made, except any information, material or facts that are likely to be protected by public interest immunity (whether the claim for public interest immunity is to be made by the AFP Minister or any other person); and
(b)
include information about the offender
'
s age; and
(c)
request that the order be in force for a specified period; and
(d)
if the application is for an extended supervision order
-
include the following material:
(i)
a copy of the proposed conditions;
(ii)
an explanation as to why each of the proposed conditions should be imposed on the offender;
(iii)
if the AFP Minister is aware of any facts relating to why any of those conditions should not be imposed on the offender
-
a statement of those facts, except any facts that are likely to be protected by public interest immunity (whether the claim for public interest immunity is to be made by the AFP Minister or any other person);
(iv)
if the offender is subject to an order under a law of a State or Territory that is equivalent to a post-sentence order
-
a copy of that order; and
(e)
if a report was obtained under section
105A.18D
in relation to the offender
-
include a copy of the report.
Note 1:
For paragraph (3)(c), the period must not be more than 3 years (see subsection
105A.7(5)
and paragraph
105A.7A(4)(d)
).
Note 2:
Evidence may also be adduced later under section
105A.14
.
Note 3:
A copy of the application must be given to the terrorist offender under section
105A.14A
.
History
S 105A.5(3) amended by No 131 of 2021, s 3 and Sch 1 items 68
-
71, by substituting
"
the order or orders mentioned in paragraph (2A)(a) or (b) (as the case requires)
"
for
"
the order
"
in para (aa), inserting para (d) and (e) and substituting notes 1 and 3, effective 9 December 2021. Notes 1 and 3 formerly read:
Note 1:
The period must not be more than 3 years (see subsection 105A.7(5)).
Note 3:
For public interest immunity, see also subsection (9).
S 105A.5(3) amended by No 119 of 2019, s 3 and Sch 2 items 14 and 15, by inserting
"
, except any information, material or facts that are likely to be protected by public interest immunity (whether the claim for public interest immunity is to be made by the AFP Minister or any other person)
"
in para (aa) and inserting note 3, effective 12 December 2019.
(4)
(Repealed by No 131 of 2021)
History
S 105A.5(4) repealed by No 131 of 2021, s 3 and Sch 1 item 72, effective 9 December 2021. S 105A.5(4) formerly read:
Giving offender copy of application
(4)
The applicant must, subject to subsection (5), give a copy of the application to the offender personally within 2 business days after the application is made.
Note:
For giving the offender documents, see section 105A.15.
(5)
(Repealed by No 131 of 2021)
History
S 105A.5(5) repealed by No 131 of 2021, s 3 and Sch 1 item 72, effective 9 December 2021. S 105A.5(5) formerly read:
Giving offender copy of application
(5)
The applicant is not required to give to the offender, when the applicant gives the copy of the application to the offender under subsection (4), any information included in the application if a Minister (the
decision-maker
) is likely to take any of the following actions in relation to the information:
(a)
give a certificate under Subdivision C of Division 2 of Part 3A of the
National Security Information (Criminal and Civil Proceedings) Act 2004
;
(b)
seek an arrangement under section 38B of that Act;
(d)
seek an order of the Court preventing or limiting disclosure of the information.
S 105A.5(5) amended by No 74 of 2018, s 3 and Sch 1 item 20, by substituting
"
a Minister (the
decision-maker
)
"
for
"
the AFP Minister
"
, effective 25 August 2018.
S 105A.5(5) amended by No 31 of 2018, s 3 and Sch 2 item 114(15), by substituting
"
AFP Minister
"
for
"
Attorney-General
"
, effective 11 May 2018. For transitional rules, see note under s
72.28
.
(6)
(Repealed by No 131 of 2021)
History
S 105A.5(6) repealed by No 131 of 2021, s 3 and Sch 1 item 72, effective 9 December 2021. S 105A.5(6) formerly read:
Giving offender copy of application
(6)
However, the applicant must (subject to subsection (7)) give the offender personally a complete copy of the application if:
(a)
the decision-maker decides not to take any of the actions referred to in any of paragraphs (5)(a) to (d); or
(b)
the Minister gives a certificate referred to in paragraph (5)(a); or
(c)
the Court makes an order in relation to action taken by the decision-maker under paragraph (5)(b) or (d).
Note:
For giving an offender documents, see section 105A.15.
S 105A.5(6) substituted by No 119 of 2019, s 3 and Sch 2 item 16, effective 12 December 2019. S 105A.5(6) formerly read:
Giving offender copy of application
(6)
However, the applicant must give the offender personally a complete copy of the application:
(a)
if the decision maker later decides not to take any of the actions referred to in any of paragraphs (5)(a) to (d), or after the decision maker takes such action the Court makes an order
-
within 2 business days of the decision maker
'
s decision or the order (as the case requires); and
(b)
in any case
-
within a reasonable period before the preliminary hearing referred to in section 105A.6.
Note:
For giving the offender documents, see section 105A.15.
S 105A.5(6) amended by No 74 of 2018, s 3 and Sch 1 items 21 and 22, by substituting
"
decision-maker
"
for
"
AFP Minister
"
(first and second occurring) and
"
decision-maker
'
s
"
for
"
AFP Minister
'
s
"
in para (a), effective 25 August 2018.
S 105A.5(6) amended by No 31 of 2018, s 3 and Sch 2 items 114(15) and (16), by substituting
"
AFP Minister
"
for
"
Attorney-General
"
and
"
AFP Minister
'
s
"
for
"
Attorney-General
'
s
"
in para (a) (wherever occurring), effective 11 May 2018. For transitional rules, see note under s
72.28
.
(7)
(Repealed by No 131 of 2021)
History
S 105A.5(7) repealed by No 131 of 2021, s 3 and Sch 1 item 72, effective 9 December 2021. S 105A.5(7) formerly read:
Giving offender copy of application
(7)
Subsection (6) is subject to:
(a)
the certificate referred to in paragraph (5)(a); or
(b)
any order made by the Court.
S 105A.5(7) inserted by No 119 of 2019, s 3 and Sch 2 item 16, effective 12 December 2019.
(8)
(Repealed by No 131 of 2021)
History
S 105A.5(8) repealed by No 131 of 2021, s 3 and Sch 1 item 72, effective 9 December 2021. S 105A.5(8) formerly read:
Giving offender copy of application
(8)
The copy of the application must be given:
(a)
within 2 business days of:
(i)
the decision-maker
'
s decision not to take any of the actions referred to in any of paragraphs (5)(a) to (d); or
(ii)
the giving of the certificate referred to in paragraph (5)(a); or
(iii)
the order referred to in paragraph (6)(c) being made; and
(b)
within a reasonable period before the preliminary hearing referred to in section 105A.6.
S 105A.5(8) inserted by No 119 of 2019, s 3 and Sch 2 item 16, effective 12 December 2019.
(9)
(Repealed by No 131 of 2021)
History
S 105A.5(9) repealed by No 131 of 2021, s 3 and Sch 1 item 72, effective 9 December 2021. S 105A.5(9) formerly read:
Public interest immunity
(9)
If information (however described) is excluded from an application on the basis of public interest immunity as mentioned in paragraph (3)(aa), the applicant must give written notice to the offender personally stating that the information has been excluded on the basis of public interest immunity. The notice must be given at the time that a copy of the application is given to the offender.
S 105A.5(9) inserted by No 119 of 2019, s 3 and Sch 2 item 16, effective 12 December 2019.
(10)
(Repealed by No 131 of 2021)
History
S 105A.5(10) repealed by No 131 of 2021, s 3 and Sch 1 item 72, effective 9 December 2021. S 105A.5(10) formerly read:
Public interest immunity
(10)
To avoid doubt, nothing in this section imposes an obligation on the offender to satisfy the Court that a claim of public interest immunity should not be upheld.
Note:
The offender may seek to access any information, material or facts that are likely to be protected by public interest immunity (for example, through a subpoena). Under the law of public interest immunity, the person claiming the immunity must make and substantiate the claim, and satisfy the Court that the claim should be upheld.
S 105A.5(10) inserted by No 119 of 2019, s 3 and Sch 2 item 16, effective 12 December 2019.
History
S 105A.5 inserted by No 95 of 2016, s 3 and Sch 1 item 1, effective 7 June 2017.
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