Michael Sukkar (Deakin, Liberal Party, Assistant Treasurer) Share this | Link to this | Hansard source

I present a supplementary explanatory memorandum to the bill.

I also ask leave of the House to move government amendments (1) to (79), as circulated, together.

Leave granted.

I move government amendments (1) to (79):

(1) Schedule 1, item 2, page 3 (lines 9 to 13), omit the definition of detained in custody in subsection 100.1(1), substitute:

detained in custody has the meaning given by subsection (3A).

(2) Schedule 1, item 2, page 3 (after line 13), after the definition of detained in custody in subsection 100.1(1), insert:

detained in custody in a prison has the meaning given by subsection (3B).

detained in non-prison custody has the meaning given by subsection (3C).

immigration detention has the same meaning as in the Migration Act 1958.

(3) Schedule 1, page 4 (after line 17), after item 3, insert:

3A Before subsection 100.1(2) of the Criminal Code

Insert:

Elements of the definition of terrorist act

3B After subsection 100.1(3) of the Criminal Code

Insert:

Definition of detained in custody etc.

(3A) A person is detained in custody if the person is detained in custody under a law of the Commonwealth, a State or a Territory.

(3B) A person is detained in custody in a prison if the person is detained in custody in a gaol, lock-up or remand centre, including under a continuing detention order or interim detention order. However, a person is not detained in custody in a prison if the person is in immigration detention in a gaol, lock-up or remand centre.

(3C) A person is detained in non-prison custody if the person is detained in custody, but is not detained in custody in a prison.

Note: An example of a person who is detained in non-prison custody is a person who is in immigration detention (whether in a gaol, lock-up, remand centre or otherwise).

References to person, property or public

(4) Schedule 1, page 5 (after line 13), after item 6, insert:

6A Subsection 104.2(5) of the Criminal Code (note)

Repeal the note, substitute:

Note: An interim control order in relation to a person who is detained in custody in a prison does not begin to be in force until the person ceases to be detained in custody in a prison (see paragraph 104.5(1)(d) and subsection 104.5(1D)).

(5) Schedule 1, item 13, page 6 (line 15), after "custody", insert "in a prison".

(6) Schedule 1, item 13, page 6 (after line 17), at the end of subsection 104.5(1D), add:

Note: An interim control order in relation to a person who is detained in non-prison custody begins to be in force when the order is served personally on the person (see paragraph (1)(d)).

(7) Schedule 1, item 13, page 6 (line 18), after "control order", insert "referred to in subsection (1D)".

(8) Schedule 1, item 13, page 6 (line 21), after "custody", insert "in a prison".

(9) Schedule 1, item 13, page 6 (after line 29), at the end of subsection 104.5(1E), add:

Note: Persons detained in non-prison custody are taken to be in the community (see section 105A.18AA).

(10) Schedule 1, item 28, page 11 (line 19), after "custody", insert "in a prison".

(11) Schedule 1, item 28, page 11 (after line 25), at the end of subsection 104.15(5), add:

Note: Persons detained in non-prison custody are taken to be in the community (see section 105A.18AA).

(12) Schedule 1, page 12 (after line 20), after item 30, insert:

30A Section 104.27 of the Criminal Code

Before "A person", insert "(1)".

(13) Schedule 1, page 12 (after line 26), after item 31, insert:

31A At the end of section 104.27 of the Criminal Code

Add:

(2) Subsection (1) does not apply if the person contravenes the order because the person is detained in non-prison custody.

Note: A defendant bears an evidential burden in relation to the matter in subsection (2). See subsection 13.3(3).

(14) Schedule 1, page 13 (after line 15), after item 37, insert:

37A Section 104.28B of the Criminal Code

Repeal the section, substitute:

104.28B Giving documents to persons detained in custody

(1) A document that is required under this Division to be given to a person (the detainee) personally who is detained in custody is taken to have been given to the detainee at the time referred to in paragraph (3)(b) if the document is given to the following person (the recipient):

(a) the legal representative of the detainee;

(b) if the detainee does not have a legal representative—the chief executive officer (however described) of the prison or other facility in which the person is detained, or a delegate of the chief executive officer.

Note: The obligation to inform the detainee of the matters referred to in paragraphs 104.12(1)(b), 104.17(1)(b) and 104.26(1)(b) and (c) might not apply if it is impracticable for an AFP member to comply with the obligation (see subsections 104.12(3A), 104.17(2A) and 104.26(3A)).

(2) The recipient must, as soon as reasonably practicable, give the document to the detainee personally.

(3) Once the recipient has done so, the recipient must notify the Court and the person who gave the recipient the document, in writing:

(a) that the document has been given to the detainee; and

(b) of the day that document was so given.

(15) Schedule 1, page 15 (after line 29), after item 47, insert:

47A Paragraph 105.26(5)(b) of the Criminal Code

After "custody", insert ", and detained in custody,".

(16) Schedule 1, page 17 (after line 31), after item 53, insert:

53A Section 105A.2 of the Criminal Code (definition of prison )

Omit "or other place of detention", substitute "or remand centre".

(17) Schedule 1, item 59, page 20 (line 18), omit "detained in custody", substitute "imprisoned".

(18) Schedule 1, item 59, page 20 (line 21), after "custody", insert "in a prison".

(19) Schedule 1, item 59, page 20 (line 27), omit "detained in custody", substitute "imprisoned".

(20) Schedule 1, item 59, page 20 (line 30), after "custody", insert "in a prison".

(21) Schedule 1, item 59, page 21 (line 1), after "custody", insert "in a prison".

(22) Schedule 1, item 59, page 21 (line 4), after "custody", insert "in a prison".

(23) Schedule 1, item 59, page 21 (line 7), after "custody", insert "in a prison".

(24) Schedule 1, item 59, page 21 (line 9), after "custody", insert "in a prison".

(25) Schedule 1, item 59, page 21 (line 25), after "custody", insert "in a prison".

(26) Schedule 1, item 59, page 21 (line 32), after "custody", insert "in a prison".

(27) Schedule 1, item 59, page 22 (line 17), omit "detained in custody", substitute "imprisoned".

(28) Schedule 1, item 59, page 22 (line 20), after "custody", insert "in a prison".

(29) Schedule 1, item 59, page 22 (line 23), after "custody", insert "in the prison".

(30) Schedule 1, item 59, page 23 (line 1), after "custody", insert "in a prison".

(31) Schedule 1, page 23 (after line 34), after item 59, insert:

59A Subsection 105A.4(1) of the Criminal Code

After "detained in", insert "custody in".

(32) Schedule 1, item 69, page 26 (line 2), omit "and".

(33) Schedule 1, item 69, page 26 (after line 2), at the end of paragraph 105A.5(3)(d), add:

(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

(34) Schedule 1, item 77, page 26 (line 27), omit "prison", substitute "custody".

(35) Schedule 1, item 82, page 29 (after line 21), after paragraph 105A.6B(1)(h), insert:

(ha) whether the offender is subject to any order under a law of a State or Territory that is equivalent to a post-sentence order, and if so, the conditions of the order;

(36) Schedule 1, item 84, page 30 (lines 1 to 10), omit the item, substitute:

83A Paragraph 105A.7(1)(c) of the Criminal Code

Repeal the paragraph, substitute:

(c) the Court is satisfied that there is no less restrictive measure available under this Part that would be effective in preventing the unacceptable risk.

84 Subsection 105A.7(1) of the Criminal Code (notes 1 and 2)

Repeal the notes, substitute:

Note 1: The rules of evidence and procedure for civil matters apply when the Court has regard to matters in accordance with section 105A.6B, as referred to in paragraph (1)(b) of this section (see subsection 105A.6B(3) and section 105A.13).

Note 2: For paragraph (1)(c), an example of a less restrictive measure that is available under this Part is an extended supervision order. A court can make an extended supervision order under section 105A.7A even if a continuing detention order was applied for (see subsection 105A.6A(1)).

(37) Schedule 1, item 86, page 30 (line 35), after "custody", insert "in a prison".

(38) Schedule 1, item 87, page 31 (lines 25 to 29), omit paragraph 105A.7A(1)(c), substitute:

(c) the Court is satisfied on the balance of probabilities that:

(i) each of the conditions; and

(ii) the combined effect of all of the conditions;

to be imposed on the offender by the order is reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the community from that unacceptable risk.

(39) Schedule 1, item 87, page 32 (line 20), after "custody", insert "in a prison".

(40) Schedule 1, item 87, page 33 (lines 6 to 14), omit subsection 105A.7B(1) (including the note), substitute:

(1) The conditions that a Court may impose on a terrorist offender by an extended supervision order or interim supervision order are:

(a) any conditions that the Court is satisfied; and

(b) those conditions whose combined effect the Court is satisfied;

on the balance of probabilities, are reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the community from the unacceptable risk of the offender committing a serious Part 5.3 offence.

Note: The Court may, under section 105A.7C, specify conditions from which exemptions may be granted.

(1A) If the terrorist offender is subject to an order under a law of a State or Territory that is equivalent to a post-sentence order, the Court must consider the conditions under that State or Territory order in imposing conditions in accordance with subsection (1).

(41) Schedule 1, item 87, page 33 (after line 32), after subsection 105A.7B(2), insert:

(2A) A condition imposed under this section must not require the offender to remain at specified premises for more than 12 hours within any 24 hours.

(42) Schedule 1, item 87, page 34 (lines 14 and 15), omit "but for no more than 12 hours within any 24 hours", substitute "subject to subsection (2A)".

(43) Schedule 1, item 92, page 42 (line 25), after "custody", insert "in a prison".

(44) Schedule 1, item 95, page 45 (line 25), after "custody", insert "in a prison".

(45) Schedule 1, item 95, page 46 (before line 5), before subsection 105A.9B(1), insert:

Requirement to apply for variation

(1A) If the AFP Minister is satisfied that a condition in an extended supervision order or interim supervision order in relation to a terrorist offender is no longer reasonably necessary, or reasonably appropriate and adapted, for the purpose of protecting the community from the unacceptable risk of the offender committing a serious Part 5.3 offence, the Minister or a legal representative of the Minister must apply to a Supreme Court of a State or Territory to vary, under section 105A.9C, the order by:

(a) removing the condition; or

(b) varying the condition.

Note 1: The AFP Minister or legal representative may also apply under subsection (1) for other variations of the order, including adding conditions.

Note 2: A copy of the application must be given to the offender under section 105A.14A.

(46) Schedule 1, item 95, page 46 (line 5), omit "apply", substitute "otherwise apply".

(47) Schedule 1, item 95, page 46 (line 6), after "may", insert "(subject to subsection (1A))".

(48) Schedule 1, item 95, page 46 (line 19), omit "The application", substitute "An application under subsection (1A) or (1)".

(49) Schedule 1, item 95, page 46 (line 23), before "(1)", insert "(1A) or".

(50) Schedule 1, item 95, page 48 (line 4), omit "subsections 105A.9B(1) and (2)", substitute "subsection 105A.9B(1A) or (1), and subsection (2),".

(51) Schedule 1, item 102, page 51 (line 18), after "custody", insert "in a prison".

(52) Schedule 1, item 102, page 51 (line 19), after "detention", insert "in the prison".

(53) Schedule 1, item 121, page 60 (line 19), omit "prison", substitute "custody".

(54) Schedule 1, page 60 (after line 19), after item 121, insert:

121A Subsection 105A.15(1) of the Criminal Code

Omit "in a prison", substitute "in custody".

121B Paragraph 105A.15(1)(b) of the Criminal Code

After "prison", insert "or other facility in which the offender is detained".

(55) Schedule 1, item 122, page 60 (lines 20 to 25), omit the item, substitute:

122 Paragraph 105A.15A(1)(a) of the Criminal Code

Omit "continuing detention order", substitute "post-sentence order".

(56) Schedule 1, page 61 (after line 4), after item 126, insert:

126A Section 105A.18 of the Criminal Code (heading)

Omit "release of terrorist offender", substitute "sentences ending or orders ceasing to be in force".

(57) Schedule 1, item 132, page 62 (line 3), after "custody", insert "in a prison".

(58) Schedule 1, item 132, page 62 (lines 7 and 8), omit "being released from custody or despite the period for which the order is in force ending", substitute "the event in subsection (1) occurring".

(59) Schedule 1, page 62 (after line 8), after item 132, insert:

132A After section 105A.18 of the Criminal Code

Insert:

105A.18AA Persons in non-prison custody taken to be in the community

A person who is detained in non-prison custody is, for the purposes of this Part, taken to be in the community.

(60) Schedule 1, item 133, page 63 (after line 14), at the end of section 105A.18A, add:

(3) Subsection (1) or (2) does not apply if the contravention of the condition or direction occurs because the person is detained in non-prison custody.

Note: A defendant bears an evidential burden in relation to the matter in subsection (3). See subsection 13.3(3).

(61) Schedule 1, item 134, page 64 (line 12), before "detention", insert "prison".

(62) Schedule 1, item 134, page 64 (line 13), before "detention", insert "prison".

(63) Schedule 1, item 134, page 64 (line 16), after "custody", insert "in a prison".

(64) Schedule 1, item 134, page 64 (line 17), after "custody", insert "in a prison".

(65) Schedule 1, item 134, page 64 (line 20), after "custody", insert "in a prison".

(66) Schedule 1, item 149, page 70 (line 10), after "detained", insert "in custody".

(67) Schedule 1, item 149, page 70 (line 19), after "custody", insert "in a prison".

(68) Schedule 1, item 151, page 71 (after line 12), after subsection 106.11(1), insert:

(1A) The amendments of section 104.27 made by Schedule 1 to the Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Act 2020 apply in relation to conduct occurring after this section commences.

(69) Schedule 1, item 151, page 71 (line 24), after "custody", insert "in a prison".

(70) Schedule 1, item 151, page 71 (line 34), after "custody", insert "in a prison".

(71) Schedule 1, page 82 (after line 14), after item 188, insert:

Intelligence Services Act 2001

188A After paragraph 29(1)(bb)

Insert:

(bbaaa) to commence a review, within the period of 12 months after the Independent National Security Legislation Monitor completes a review under subsection 6(1C) of the Independent National Security Legislation Monitor Act 2010, into the operation, effectiveness and implications of Division 105A of the Criminal Code (which provides for post-sentence orders in relation to terrorism) and any other provision of the Criminal Code Act 1995 as it relates to that Division; and

188B Paragraph 29(1)(cb)

Repeal the paragraph.

(72) Schedule 1, item 215, page 89 (line 12), after "custody", insert "in a prison".

(73) Schedule 1, item 221, page 91 (line 27), after "custody", insert "in a prison".

(74) Schedule 1, item 222, page 92 (line 26), after "custody", insert "in a prison".

(75) Schedule 1, item 240, page 99 (line 3), after "custody", insert "in a prison".

(76) Schedule 1, item 315, page 115 (line 12), after "custody", insert "in a prison".

(77) Schedule 1, item 328, page 119 (line 16), after "custody", insert "in a prison".

(78) Schedule 1, item 351, page 123 (line 32), after "custody", insert "in a prison".

(79) Schedule 1, item 362, page 127 (line 27), after "custody", insert "in a prison".

Question agreed to.

Bill, as amended, agreed to.