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

120   After section 105A.14 of the Criminal Code

Insert:

105A.14A Giving copies of applications etc. to terrorist offenders

(1) This section applies if the AFP Minister, or a legal representative of the AFP Minister, (the applicant ) applies to a Supreme Court of a State or Territory for:

(a) a post-sentence order or interim post-sentence order; or

(b) a variation of an extended supervision order or interim supervision order under section 105A.9B; or

(c) a review of a post-sentence order;

in relation to a terrorist offender.

(2) Within 2 business days after the application is made, the applicant must (subject to sections 105A.14B to 105A.14D) give a copy of the application to the offender personally, and to the offender's legal representative.

Note: For giving documents to a terrorist offender who is in prison, see section 105A.15.

(3) If the Court seeks material from the AFP Minister under paragraph 105A.7(2)(a), 105A.9(8)(a) or 105A.12(5)(b), within 2 business days after the material is provided to the Court, the applicant must (subject to sections 105A.14B to 105A.14D) give a copy of the material to the offender personally, and to the offender's legal representative.

(4) If:

(a) the post-sentence order or interim post sentence order is made or varied; and

(b) neither the offender nor a legal representative of the offender is present during the proceedings in which the order is made or varied;

the applicant must (subject to sections 105A.14B to 105A.14D), within 2 business days after the order is made or varied, give to the offender personally, and the offender's legal representative, a copy of the order that is made, or of the order as varied.

105A.14B Information excluded from application or material - national security information

(1) This section applies if the AFP Minister, or a legal representative of the AFP Minister, (the applicant ) gives a copy of an application or material to a terrorist offender, or a terrorist offender's legal representative, (the recipient ) under subsection 105A.14A(2) or (3).

(2) The applicant is not required to include any information in the application or material if a Minister (the decision-maker ) is likely to take:

(a) any actions in relation to the information under the National Security Information (Criminal and Civil Proceedings) Act 2004; or

(b) seek an order of a court preventing or limiting disclosure of the information.

(3) However, the applicant must (subject to subsection (4)) give the recipient personally a complete copy of the application or material if any of the following events occurs:

(a) the decision-maker decides not to take any of the actions referred to in paragraph (2)(a) or (b);

(b) a Minister gives a certificate under Subdivision C of Division 2 of Part 3A of the National Security Information (Criminal and Civil Proceedings) Act 2004;

(c) a court makes an order in relation to any action taken by the decision-maker under paragraph (2)(a) or (b).

(4) Subsection (3) is subject to:

(a) the certificate referred to in paragraph (3)(b); or

(b) any order made by a court.

(5) The copy of the application or material must be given under subsection (3):

(a) within 2 business days of the event referred to in subsection (3); and

(b) within a reasonable period before:

(i) if the application is for a post-sentence order - the preliminary hearing referred to in section 105A.6; or

(ii) if the application is for an interim detention order - the hearing referred to in subsection 105A.9(1A); or

(iii) if the application is for an interim supervision order - the hearing referred to in subsection 105A.9A(2); or

(iv) if the application is for a variation or review of a post-sentence order, or for a variation of an interim post-sentence order - the hearing on the application.

105A.14C Information excluded from application or material - public interest immunity

(1) This section applies if:

(a) the AFP Minister, or a legal representative of the AFP Minister, (the applicant ) gives a copy of an application or material to a terrorist offender, or a terrorist offender's legal representative, under subsection 105A.14A(2) or (3); and

(b) information (however described) is excluded from the application or material on the basis of public interest immunity.

(2) The applicant must give written notice to the offender, and the offender's legal representative, 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 or material is given to the offender or legal representative.

(3) 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.

105A.14D Information excluded from application and material - terrorism material

(1) This section applies if:

(a) the AFP Minister, or a legal representative of the AFP Minister, (the applicant ) is required to give a copy of an application or material to a terrorist offender, or a terrorist offender's legal representative, under subsection 105A.14A(2) or (3); and

(b) the application or material contains other material ( terrorism material ) that:

(i) advocates support for engaging in any terrorist acts or violent extremism; or

(ii) relates to planning or preparing for, or engaging in, any terrorist acts or violent extremism; or

(iii) advocates joining or associating with a terrorist organisation.

(2) The applicant may apply to the Supreme Court of a State or Territory referred to in subsection 105A.14A(1) for an order in relation to the manner in which the terrorism material is to be dealt with.

(3) The Court may make an order in relation to the manner in which the terrorism material is to be dealt with, including that the terrorism material:

(a) be provided to the offender's legal representative; or

(b) be available for inspection by the offender at specified premises.