George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Hansard source

by leave—I move amendments (1) through to (58) on sheet HU159 together:

(1) Schedule 1, page 4 (before line 4), before item 1, insert:

1A At the end of section 72.3 of the Criminal Code

Add:

Note: A court that is sentencing a person who has been convicted of an offence against this section must warn the person about continuing detention orders (see section 105A.23).

1B At the end of section 100.1 of the Criminal Code

Add:

Note: A court that is sentencing a person who has been convicted of an offence against this Part, the maximum penalty for which is 7 or more years of imprisonment, must warn the person about continuing detention orders (see section 105A.23).

1C Subsection 104.2(5) of the Criminal Code

Repeal the subsection, substitute:

(5) To avoid doubt, a senior AFP member may seek the Attorney-General's consent to request an interim control order in relation to a person even if:

(a) such a request has previously been made in relation to the person; or

(b) the person is detained in custody.

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

1D Paragraph 104.5(1 ) ( d) of the Criminal Code

Repeal the paragraph, substitute:

(d) state that the order does not begin to be in force until:

  (i) it is served personally on the person; and

  (ii) if the person is detained in custody—the person is released from custody; and

1E After paragraph 104.5(1B ) ( a) of the Criminal Code

Insert:

(aa) if the person to whom the order relates is detained in custody—any other matter relating to the person's detention that the court considers relevant; and

1F After subsection 104.5(1B) of the Criminal Code

Insert:

(1C) To avoid doubt, if the person is detained in custody, the person has a right to attend court on the day specified for the purposes of paragraph (1) (e).

1G After subsection 104.5(2) of the Criminal Code

Insert:

(2AA) To avoid doubt, if a control order is in force in relation to a person, the control order does not cease to be in force merely because the person is detained in custody.

Note: However, if a person is detained in custody, and a control order is made in relation to the person, the control order does not begin to be in force until the person is released from custody (see paragraph (1) (d)).

1H At the end of subsections 104.10(3) and 104.12(1) of the Criminal Code

Add:

Note: For the personal service of documents on a person detained in custody, see section 104.28B.

1J After subsection 104.12(3) of the Criminal Code

Insert:

(3A) Paragraphs (1) (b) and (c) do not apply if the person in relation to whom the interim control order has been made is detained in custody and it is impracticable for the AFP member to comply with those paragraphs.

1K At the end of subsections 104.12A(2) and (4) and 104.17(1) of the Criminal Code

Add:

Note: For the personal service of documents on a person detained in custody, see section 104.28B.

1L After subsection 104.17(2) of the Criminal Code

Insert:

(2A) Paragraphs (1) (b) and (c) do not apply if the person in relation to whom the interim control order has been declared void, revoked or confirmed is detained in custody and it is impracticable for the AFP member to comply with those paragraphs.

1M At the end of subsections 104.20(3) and 104.26(1) of the Criminal Code

Add:

Note: For the personal service of documents on a person detained in custody, see section 104.28B.

1N Subsection 104.26(3) of the Criminal Code

Omit "interim control order", substitute "control order".

1P After subsection 104.26(3) of the Criminal Code

Insert:

(3A) Paragraphs (1) (b), (c) and (d) do not apply if the person in relation to whom the control order has been made is detained in custody and it is impracticable for the AFP member to comply with those paragraphs.

1Q After section 104.28A of the Criminal Code

Insert:

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 prisoner) personally who is detained in custody at a prison is taken to have been given to the prisoner 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 prisoner;

(b) if the prisoner does not have a legal representative—the chief executive officer (however described) of the prison, or a delegate of the chief executive officer.

Note: The obligation to inform the prisoner 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 prisoner personally.

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

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

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

(2) Schedule 1, item 1, page 4 (before line 15), before the definition of continuing detention order in section 105A.2, insert:

Commonwealth law enforcement officer has the meaning given by Part 7.8.

(3) Schedule 1, item 1, page 4 (line 21), omit "order.", substitute "order; or".

(4) Schedule 1, item 1, page 4 (after line 21), at the end of the definition of continuing detention order decision in section 105A.2, add:

(c) a decision made under section 105A.15A (when a terrorist offender is unable to engage a legal representative).

(5) Schedule 1, item 1, page 4 (after line 23), after the definition of continuing detention order proceeding in section 105A.2, insert:

intelligence or security officer has the meaning given by Part 10.6.

(6) Schedule 1, item 1, page 5 (lines 25 and 26), omit subparagraph 105A.3(1) (a) (ii).

(7) Schedule 1, item 1, page 5 (line 29), omit "recruitment); and", substitute "recruitment), except an offence against subsection 119.7(2) or (3) (publishing recruitment advertisements); or".

(8) Schedule 1, item 1, page 5 (after line 29), at the end of paragraph 105A.3(1) (a), add:

  (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

(9) Schedule 1, item 1, page 6 (after line 10), at the end of subsection 105A.3(2), add:

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).

(10) Schedule 1, item 1, page 7 (line 7), omit "6", substitute "12".

(11) Schedule 1, item 1, page 7 (after line 14), after subsection 105A.5(2), insert:

(2A) The Attorney-General 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.

(12) Schedule 1, item 1, page 7 (after line 19), after paragraph 105A.5(3) (a), insert:

(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 should not be made; and

(13) Schedule 1, item 1, page 7 (line 32), omit "do any of the following", substitute "take any of the following actions".

(14) Schedule 1, item 1, page 8 (line 5), omit paragraph 105A.5(5) (c).

(15) Schedule 1, item 1, page 8 (after line 7), at the end of section 105A.5, add:

(6) However, the applicant must give the offender personally a complete copy of the application:

(a) if the Attorney-General later decides not to take any of the actions referred to in any of paragraphs (5) (a) to (d), or after the Attorney-General takes such action the Court makes an order—within 2 business days of the Attorney-General'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.

(16) Schedule 1, item 1, page 8 (lines 15 to 18), omit subsection 105A.6(3), substitute:

(3) The Court may, either at the preliminary hearing or at any later time in the proceeding, appoint one or more relevant experts if the Court considers that doing so is likely to materially assist the Court in deciding whether to make a continuing detention order in relation to the offender.

(3A) The Attorney-General, the offender, or a legal representative of the Attorney-General or offender, may nominate one or more relevant experts for the purposes of subsection (3).

(17) Schedule 1, item 1, page 8 (after line 28), after subsection 105A.6(5), insert:

(5A) None of the following is admissible in evidence against the offender in criminal or civil proceedings:

(a) the answer to a question or information given at the assessment;

(b) answering a question or giving information at the assessment.

(18) Schedule 1, item 1, page 8 (lines 29 and 30), omit "subsection (5) and paragraph 105A.8(b)", substitute "subsections (5) and (5A) and paragraph 105A.8(1) (b)".

(19) Schedule 1, item 1, page 8 (line 32), omit "must include", substitute "may include any one or more of".

(20) Schedule 1, item 1, page 9 (after line 21), at the end of section 105A.6, add:

Other relevant experts

(8) This section does not prevent the Attorney-General, the offender, or a legal representative of the Attorney-General or offender, from calling his or her own relevant expert as a witness in the proceeding.

(21) Schedule 1, item 1, page 9 (line 37), omit "Note", substitute "Note 1".

(22) Schedule 1, item 1, page 9 (after line 37), at the end of subsection 105A.7(1), add:

Note 2: The rules of evidence and procedure for civil matters apply when the Court has regard to matters in accordance with section 105A.8, as referred to in paragraph (1) (b) of this section (see subsection 105A.8(3) and section 105A.13).

(23) Schedule 1, item 1, page 10 (line 18), before "In deciding", insert "(1)".

(24) Schedule 1, item 1, page 11 (line 8), after "any offence", insert "referred to in paragraph 105A.3(1) (a)".

(25) Schedule 1, item 1, page 11 (lines 11 and 12), omit paragraph 105A.8(g), substitute:

(g) the offender's history of any prior convictions for, and findings of guilt made in relation to, any offence referred to in paragraph 105A.3(1) (a);

(26) Schedule 1, item 1, page 11 (lines 13 and 14), omit "the relevant sentence of imprisonment", substitute "any sentence for any offence referred to in paragraph 105A.3(1) (a)".

(27) Schedule 1, item 1, page 11 (line 16), omit "offence;", substitute "offence.".

(28) Schedule 1, item 1, page 11 (line 17), omit paragraph 105A.8(j).

(29) Schedule 1, item 1, page 11 (after line 17), at the end of section 105A.8, add:

(2) Subsection (1) does not prevent the Court from having regard to any other matter the Court considers relevant.

(3) To avoid doubt, section 105A.13 (civil evidence and procedure rules in relation to continuing detention order proceedings) applies to the Court's consideration of the matters referred to in subsections (1) and (2) of this section.

(30) Schedule 1, item 1, page 11 (after line 23), after subsection 105A.9(1), insert:

(1A) On receiving the application for the interim detention order, the Court must hold a hearing to determine whether to make the order.

(31) Schedule 1, item 1, page 11 (lines 34 to 37), omit paragraph 105A.9(2) (b), substitute:

(b) the Court is satisfied that there are reasonable grounds for considering that a continuing detention order will be made in relation to the offender.

(32) Schedule 1, item 1, page 12 (lines 21 to 29), omit subsection 105A.10(1), substitute:

(1A) The Attorney-General, or a legal representative of the Attorney-General, must, before the end of the period referred to in subsection (1B), apply to a Supreme Court of a State or Territory for a review of a continuing detention order that is in force in relation to a terrorist offender.

Note: For when an application is not required to be made, see subsection (2).

(1B) The application must be made before the end of the period of 12 months after:

(a) the order began to be in force; or

(b) if the order has been reviewed under this Subdivision by a Supreme Court of a State or Territory—the most recent review ended.

(1) On receiving the application, the Court must begin the review of the order before the end of that period.

Note: For the process for reviewing a continuing detention order, see section 105A.12.

(33) Schedule 1, item 1, page 12 (line 30), omit "However, a review is", substitute "Despite subsection (1), an application for a review, and a review, are".

(34) Schedule 1, item 1, page 13 (line 1), omit "The review is to be conducted by", substitute "The application must be made to".

(35) Schedule 1, item 1, page 13 (after line 2), at the end of section 105A.10, add:

(4) If an application is not made in accordance with this section, the order ceases to be in force at the end of the period referred to in subsection (1B).

(36) Schedule 1, item 1, page 13 (before line 28), before subsection 105A.12(3), insert:

Relevant experts

(37) Schedule 1, item 1, page 13 (after line 30), after subsection 105A.12(3), insert:

(3A) The Attorney-General, the offender, or a legal representative of the Attorney-General or offender, may nominate one or more relevant experts for the purposes of subsection (3).

(3B) Subsection (3) does not prevent the Attorney-General, the offender, or a legal representative of the Attorney-General or offender, from calling his or her own relevant expert as a witness in the review.

(38) Schedule 1, item 1, page 14 (line 12), omit "Note", substitute "Note 1".

(39) Schedule 1, item 1, page 14 (after line 12), at the end of subsection 105A.12(4), add:

Note 2: The rules of evidence and procedure for civil matters apply when the Court has regard to matters in accordance with section 105A.8, as referred to in paragraph (4) (a) of this section (see subsection 105A.8(3) and section 105A.13).

(40) Schedule 1, item 1, page 14 (before line 15), before subsection 105A.12(6) (after the heading), insert:

(5A) The Attorney-General 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 affirmed.

(41) Schedule 1, item 1, page 14 (after line 16), after subsection 105A.12(6), insert:

(6A) The Attorney-General, or the legal representative of the Attorney-General, must present to the Court:

(a) a copy of any material in the possession of the Attorney-General or legal representative; and

(b) a statement of any facts that the Attorney-General or legal representative is aware of;

that would reasonably be regarded as supporting a finding that the order should not be affirmed.

(42) Schedule 1, item 1, page 15 (lines 1 to 4), omit subsection 105A.13(2), substitute:

(2) Despite anything in the rules of evidence and procedure, the Court may receive in evidence in the proceeding evidence of:

(a) the level of the offender's compliance with any obligations to which he or she is or has been subject while on release on parole for any offence; and

(b) the offender's history of any prior convictions for, and findings of guilt made in relation to, any offence.

(43) Schedule 1, item 1, page 15 (lines 11 to 15), omit subsection 105A.15(1), substitute:

(1) A document that is required to be given under this Division to a terrorist offender who is detained in a prison is taken to have been given to the offender 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 offender;

(b) if the offender does not have a legal representative—the chief executive officer (however described) of the prison, or a delegate of the chief executive officer.

(44) Schedule 1, item 1, page 15 (line 16), omit "chief executive officer", substitute "recipient".

(45) Schedule 1, item 1, page 15 (line 18), omit "chief executive officer", substitute "recipient".

(46) Schedule 1, item 1, page 15 (line 19), omit "officer", substitute "recipient".

(47) Schedule 1, item 1, page 15 (after line 22), after section 105A.15, insert:

105A.15A When a terrorist offender is unable to engage a legal representative

(1) This section applies if:

(a) a continuing detention order proceeding relating to a terrorist offender is before a Supreme Court of a State or Territory; and

(b) the offender, due to circumstances beyond the offender's control, is unable to engage a legal representative in relation to the proceeding.

(2) The Court may make either or both of the following orders:

(a) an order staying the proceeding for such period and subject to such conditions as the Court thinks fit;

(b) an order requiring the Commonwealth to bear, in accordance with the regulations (if any), all or part of the reasonable costs and expenses of the offender's legal representation for the proceeding.

(3) The regulations may prescribe matters that the Court may, must or must not take into account in determining either or both of the following:

(a) whether circumstances are beyond the offender's control;

(b) reasonable costs and expenses of the offender's legal representation for the proceeding.

(4) This section does not limit any other power of the Court.

(48) Schedule 1, item 1, page 17 (line 5), omit "force; and", substitute "force;".

(49) Schedule 1, item 1, page 17 (after line 5), at the end of paragraph 105A.18(1) (a), add:

  (v) an appeal against a decision under section 105A.15A to stay a continuing detention order proceeding in relation to a terrorist offender (including a decision under that section to stay a proceeding for a specified period or to impose a specified condition); and

(50) Schedule 1, item 1, page 19 (line 14), after "continuing detention order", insert "or interim detention order".

(51) Schedule 1, item 1, page 19 (lines 16 and 17), after "continuing detention order", insert "or interim detention order".

(52) Schedule 1, item 1, page 19 (line 32), after "made", insert "by terrorist offenders".

(53) Schedule 1, item 1, page 20 (after line 6), at the end of Subdivision F, add:

(1) A court that is sentencing a person who is convicted of an offence referred to in paragraph 105A.3(1) (a) must warn the person that an application may be made under this Division for a continuing detention order requiring the person to be detained in a prison after the end of the person's sentence for the offence.

(2) A failure by the court to comply with subsection (1) does not:

(a) affect the validity of the sentence for the offence; or

(b) prevent an application from being made under this Division in relation to the person.

105A.24 Effect of continuing detention orders on bail or parole laws

(1) A person in relation to whom a continuing detention order or an interim detention order is in force is not eligible to be released on bail or parole until the order ceases to be in force.

(2) Subsection (1) does not prevent the person from applying, before the order ceases to be in force, to be released on bail if the person is charged with an offence while the order is in force.

Note: Although the person can apply to be released on bail, as a result of subsection (1), the person cannot be released on bail until the continuing detention order ceases to be in force.

(3) This section applies despite any law of the Commonwealth, a State or a Territory.

105A.25 Sunset provision

A continuing detention order, and an interim detention order, cannot be applied for, or made, after the end of 10 years after the day the Criminal Code Amendment (High Risk Terrorist Offenders) Act 2016 received the Royal Assent.

(54) Schedule 1, item 2, page 20 (before line 12), section 106.8 (after the heading), insert:

(1) The amendments of section 104.2 made by the Criminal Code Amendment (High Risk Terrorist Offenders) Act 2016 apply in relation to any control order, whether made before or after this section commences.

(2) The amendments of subsections 104.5(1) and (1B) and section 104.12 made by that Act apply in relation to a control order if the request for the control order is made after this section commences.

(3) Subsections 104.5(1C) and (2AA), as inserted by that Act, apply in relation to any control order, whether made before or after this section commences.

(4) The amendments of section 104.17 made by that Act apply in relation to any interim control order that is declared to be void, revoked or confirmed after this section commences.

(5) The amendments of section 104.26 made by that Act apply in relation to any control order varied after this section commences.

(6) Section 104.28B, as inserted by that Act, applies in relation to the giving of documents after this section commences.

(55) Schedule 1, item 2, page 20 (line 12), omit "Division 105A, as inserted by the Criminal Code Amendment (High Risk Terrorist Offenders) Act 2016,", substitute "(7) Division 105A (except section 105A.23), as inserted by that Act,".

(56) Schedule 1, item 2, page 20 (after line 20), at the end of section 106.8, add:

(8) Section 105A.23, as inserted by that Act, applies in relation to any sentence imposed on a person after this section commences, whether the offence in relation to which the sentence is imposed was committed before or after that commencement.

(57) Schedule 1, page 20 (after line 20), at the end of the Schedule, add:

3 At the end of section 117.1 of the Criminal Code

Add:

Note: A court that is sentencing a person who has been convicted of an offence against this Part (except subsection 119.7(2) or (3)) must warn the person about continuing detention orders (see section 105A.23).

(58) Schedule 2, page 21 (before line 4), before item 1, insert:

Crimes Act 1914

1A Paragraph 3ZQU(1 ) ( e)

Omit "or 105", substitute ", 105 or 105A".

1B Paragraph 3ZZEA(1 ) ( d)

Omit "or 105", substitute ", 105 or 105A".

1C At the end of subsection 16F(1)

Add:

Note: A court that is sentencing a person who has been convicted of an offence referred to in paragraph 105A.3(1) (a) of the Criminal Code must warn the person about continuing detention orders (see section 105A.23 of the Code).

Independent National Security Legislation Monitor Act 2010

1D After subparagraph 6(1 ) ( a ) ( i)

Insert:

  (ia) without limiting subparagraph (i), Division 105A of the Criminal Code and any other provision of that Code as far as it relates to that Division; and

1E After subsection 6(1B)

Insert:

(1C) The Independent National Security Legislation Monitor must complete the review under subparagraph (1) (a) (ia) before the end of 5 years after the day the Criminal Code Amendment (High Risk Terrorist Offenders) Act 2016 received the Royal Assent.

Intelligence Services Act 2001

1F After paragraph 29(1 ) ( ca)

Insert:

(cb) without limiting paragraphs (baa) to (bac),to review, before the end of 6 years after the day the Criminal Code Amendment (High Risk Terrorist Offenders) Act 2016 received the Royal Assent, the operation, effectiveness and implications of Division 105A of the Criminal Code and any other provision of that Code as far as it relates to that Division;

I also table a supplementary explanatory memorandum relating to the government amendments. The government amendments to the Criminal Code Amendment (High Risk Terrorist Offenders) Bill give effect to the government's acceptance of all 24 recommendations of the Parliamentary Joint Committee on Intelligence and Security, and also some further amendments, arising from further consideration, of a minor nature. All states have indicated their agreement to these amendments under the terms of the Intergovernmental Agreement on Counter-Terrorism Laws. The amendments improve the safeguards, operations and oversight of the post-sentence preventative detention scheme for high risk terrorist offenders.

The amendments will provide that an application for a continuing detention order may be commenced up to 12 months, rather than six months, prior to the expiry of a terrorist offender's sentence. The scope of the offences to which the scheme applies will be limited by removing offences against subdivision B of division 80 of the Criminal Code—that is, the offence of treason—and offences against subsections 119.72 and 119.73 of the Criminal Code—that is, the offence of publishing recruitment advertisements. The government has accepted the view of the PJCIS that those two categories of criminal offences are not appropriate to be comprehended within the regime of the post-sentence detention scheme. The Attorney-General must apply to the Supreme Court for a review of a continuing detention order at the end of the period of 12 months after the order began in force or 12 months after the most recent review has ended, and the failure to do so will mean that the continuing detention order will cease to be in force.

The amendments provide that the Attorney-General must undertake reasonable inquiries to ascertain any facts known to a Commonwealth law enforcement or intelligence or security officer that would reasonably be regarded as supporting a finding that a continuing detention order should not be made or is no longer required. They provide that the application for a continuing detention order or a review of a continuing detention order must include a copy of any material in the possession of the Attorney-General or any statements of facts that the Attorney-General is aware of that would reasonably be regarded as supporting a finding that an order should not be made. They provide that on receiving an application for an interim detention order the court must hold a hearing where the court must be satisfied that there are reasonable grounds for considering that a continuing detention order will be made in relation to the terrorist offender.

The amendments also provide that each party to the proceeding may bring forward their own preferred relevant expert or experts, and the court will then determine the admissibility of each expert's evidence. They provide that any responses to questions or information given by the terrorist offender to an expert during an assessment will not be admissible in evidence against the offender in criminal or other civil proceedings. They provide that the criminal history of the offender that the court must have regard to in making its continuing detention order will be confined to convictions for those offences referred to in paragraph 105A.31A of the bill, that is terrorism offences. They provide that if the offender due to circumstances beyond his or her control is unable to obtain legal representation, the court may stay the proceeding and/or require the Commonwealth to bear all or part of the reasonable costs of the offender's legal representation in the proceeding.

The amendments provide that when sentencing an offender convicted under any of the provisions of the Criminal Code to which the continuing detention scheme applies the sentencing court must warn the offender that an application for continuing detention could be considered. Finally, they provide that the continuing detention scheme will be subject to a sunset period of 10 years after the day the bill receives royal assent.

Further, to enhance oversight of the continuing detention scheme, the amendments also provide that the Independent National Security Legislation Monitor Act 2