Counter-Terrorism Legislation Amendment (Foreign Fighters)
Act 2014
No. 116, 2014
An Act to amend the law relating to counter‑terrorism and other matters,
and for related purposes
[Assented
to 3 November 2014]
The Parliament of Australia enacts:
1
Short title
This Act may be cited as the Counter‑Terrorism
Legislation Amendment (Foreign Fighters) Act 2014.
2
Commencement
(1) Each provision of this Act specified in
column 1 of the table commences, or is taken to have commenced, in accordance
with column 2 of the table. Any other statement in column 2 has effect
according to its terms.
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Commencement information
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Column 1
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Column 2
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Column 3
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Provisions
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Commencement
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Date/Details
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1. Sections 1 to 3 and
anything in this Act not elsewhere covered by this table
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The day this Act receives the Royal Assent.
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3 November 2014
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2. Schedules 1 and 2
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The 28th day after this Act receives the Royal Assent.
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1 December 2014
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3. Schedules 3 to 5
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The day after this Act receives the Royal Assent.
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4 November 2014
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4. Schedule 6
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1 July 2015.
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1 July 2015
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5. Schedule 7, items 1 to 3
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The day after this Act receives the Royal Assent.
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4 November 2014
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6. Schedule 7, item 4
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Immediately after the commencement of the provisions
covered by table item 1.
However, if item 2 of Schedule 1 to the Migration
Amendment (Protection and Other Measures) Act 2014 commences before that
time, the provisions do not commence at all.
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3 November 2014
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7. Schedule 7, item 5
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Immediately after the commencement of item 2 of
Schedule 1 to the Migration Amendment (Protection and Other Measures)
Act 2014 (the related item).
However, if the related item commences before the
commencement of the provisions covered by table item 1, the provisions
do not commence at all.
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8. Schedule 7, item 6
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The day after this Act receives the Royal Assent.
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4 November 2014
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9. Schedule 7, item 7
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The day after this Act receives the Royal Assent.
However, if item 2 of Schedule 1 to the Migration
Amendment (Protection and Other Measures) Act 2014 has not commenced
before that day, the provisions do not commence at all.
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Never commenced
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10. Schedule 7, item 8
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The day after this Act receives the Royal Assent.
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4 November 2014
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11. Schedule 7, item 9
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The day after this Act receives the Royal Assent.
However, if item 2 of Schedule 1 to the Migration
Amendment (Protection and Other Measures) Act 2014 has commenced before
that day, the provisions do not commence at all.
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4 November 2014
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12. Schedule 7, item 10
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Immediately after the commencement of item 2 of
Schedule 1 to the Migration Amendment (Protection and Other Measures)
Act 2014 (the related item).
However, if the related item commences before the
commencement of the provisions covered by table item 6, the provisions
do not commence at all.
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13. Schedule 7, item 11
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The day after this Act receives the Royal Assent.
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4 November 2014
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Note: This table relates only to the provisions of
this Act as originally enacted. It will not be amended to deal with any later
amendments of this Act.
(2) Any information in column 3 of the table
is not part of this Act. Information may be inserted in this column, or
information in it may be edited, in any published version of this Act.
3
Schedules
Legislation that is specified in a
Schedule to this Act is amended or repealed as set out in the applicable items
in the Schedule concerned, and any other item in a Schedule to this Act has
effect according to its terms.
Schedule 1—Main counter‑terrorism amendments
Part 1—Amendments
Administrative Decisions (Judicial
Review) Act 1977
1 After paragraph (db) of Schedule 1
Insert:
(dc) decisions under section 22A or
24A of the Australian Passports Act 2005;
(dd) decisions under section 15A or
16A of the Foreign Passports (Law Enforcement and Security) Act 2005;
Anti‑Money Laundering and Counter‑Terrorism
Financing Act 2006
2 Section 5
Insert:
Attorney‑General’s Department means the
Department administered by the Attorney‑General.
3 Section 5 (after paragraph (ha) of the
definition of designated agency)
Insert:
(hb) the Attorney‑General’s Department;
or
4 Application of amendments
(1) The amendments of section 5 of the Anti‑Money
Laundering and Counter‑Terrorism Financing Act 2006 made by this Schedule
apply in relation to disclosures of, and access to, information after this item
commences, whether the information was obtained before, on or after that
commencement.
(2) For the purposes of the Anti‑Money Laundering and
Counter‑Terrorism Financing Act 2006, if information is disclosed in
accordance with a provision of that Act to an official of the Attorney‑General’s
Department before this item commences, the information is taken to have been
disclosed to an official of a designated agency.
5 Paragraph 121(2)(a)
Omit “section 49 or”.
6 Paragraphs 122(1)(a), (b), (c) and (d)
Repeal the paragraphs.
7 Paragraphs 122(3)(a), (c) and (d)
Repeal the paragraphs.
8 Application of amendments
The amendments of sections 121 and 122 of the
Anti‑Money Laundering and Counter‑Terrorism Financing Act 2006 made by
this Schedule apply in relation to disclosures of information after this item
commences, whether the information was obtained before, on or after that
commencement.
AusCheck Act 2007
9 Paragraph 8(2)(d)
After “5.3”, insert “or 5.5”.
10 Paragraph 8(2)(d)
Omit “deals with terrorism”, substitute “deal with terrorism,
foreign incursions and recruitment”.
Australian Passports Act 2005
11 Subsection 6(1)
Insert:
ASIO means the Australian Security
Intelligence Organisation.
12 Section 17 (heading)
Repeal the heading, substitute:
17
Reasons relating to concurrently valid or suspended Australian travel document
13 At the end of subsection 17(1)
Add “or is suspended under section 22A”.
14 Division 3 of Part 2 (heading)
Repeal the heading, substitute:
Division 3—When Australian travel documents are not valid
15 Section 20 (heading)
Repeal the heading, substitute:
20
When Australian passports are not valid
Cessation of validity
16 At the end of section 20
Add:
Suspension of validity
(3) An Australian passport is not valid while
it is suspended under section 22A.
17 Section 21 (heading)
Repeal the heading, substitute:
21
When travel‑related documents are not valid
Cessation of validity
18 Section 21
Before “A travel‑related document”, insert “(1)”.
19 At the end of section 21
Add:
Suspension of validity
(2) A travel‑related document is not valid
while it is suspended under section 22A.
20 At the end of section 22
Add:
(3) To avoid doubt, the suspension of an
Australian travel document does not prevent the Minister from cancelling it.
21 At the end of Division 3 of Part 2
Add:
22A
Suspension of Australian travel document
(1) The Minister may, on request under subsection (2),
suspend for 14 days all Australian travel documents that have been issued to a
person.
(2) The Director‑General of Security may
request the Minister to suspend all Australian travel documents issued to a
person if the Director‑General suspects on reasonable grounds that:
(a) the person may leave Australia to
engage in conduct that might prejudice the security of Australia or a foreign
country; and
(b) all the person’s Australian travel
documents should be suspended in order to prevent the person from engaging in
the conduct.
(3) If an Australian travel document of a
person has been suspended under subsection (1), another request under
subsection (2) relating to the person must not be made unless the grounds
for suspicion mentioned in subsection (2) include information first
obtained by the Director‑General of Security or an officer or employee of ASIO
after the end of the suspension.
(4) The Director‑General of Security may, in
writing, delegate his or her power under subsection (2) to a Deputy
Director‑General of Security (within the meaning of the Australian Security
Intelligence Organisation Act 1979).
(5) In exercising power under a delegation,
the delegate must comply with any directions of the Director‑General of
Security.
22 At the end of paragraph 24(1)(b)
Add “except because of a suspension under section 22A”.
23 After section 24
Insert:
24A
Demand for surrender of suspended Australian travel document
(1) An officer may demand that a person
surrender an Australian travel document to the officer if the document is
suspended under section 22A.
(2) A person commits an offence if:
(a) an officer demands under subsection (1)
that the person surrender an Australian travel document; and
(b) the officer informs the person
that the officer is authorised to demand that document; and
(c) the officer informs the person
that it may be an offence not to comply with the demand; and
(d) the person has possession or
control of the document; and
(e) the person fails to surrender the document
to the officer immediately.
Penalty: Imprisonment for 6 months or 10 penalty units, or
both.
(3) An Australian travel document obtained by
an officer under this section must be returned, to the person to whom it was
issued, at the end of the period for which it is suspended, unless it is
cancelled.
24 Section 48 (note)
Omit “Under section 27A”, substitute “Except in cases
described in section 48A of this Act, under section 27A”.
25 After section 48
Insert:
48A
When notice of refusal or cancellation of Australian travel document is not
required
Application
(1) This section sets out when the Minister
is not required to notify a person of a decision by the Minister to do either
of the following because of a refusal/cancellation request made under
subsection 14(1):
(a) refuse to issue an Australian
passport to the person;
(b) cancel an Australian travel
document issued to the person.
Note: This section applies to a delegate of the
Minister in the same way as it applies to the Minister: see paragraph 34AB(1)(c)
of the Acts Interpretation Act 1901.
Request by ASIO
(2) The Minister is not required to notify
the person if:
(a) the request was made by ASIO or
the Director‑General of Security; and
(b) there is in force a certificate
under paragraph 38(2)(a) of the Australian Security Intelligence
Organisation Act 1979 relating to notice to the person of the making of the
security assessment that constituted the request.
Request by Australian Federal Police
(3) The Minister is not required to notify
the person if:
(a) the request was made by a member
or a special member of the Australian Federal Police; and
(b) there is in force a certificate
under subsection (4).
(4) If the Minister administering the Australian
Federal Police Act 1979 is satisfied that notifying the person of the decision
would adversely affect a current investigation of any of the following
offences, that Minister may, by signed writing, certify accordingly:
(a) an offence against Subdivision A
of Division 72 of the Criminal Code;
(b) an offence against Subdivision B
of Division 80 of the Criminal Code;
(c) an offence against Part 5.3
or 5.5 of the Criminal Code;
(d) an offence against either of the
following provisions of the Charter of the United Nations Act 1945:
(i) Part 4 of that
Act;
(ii) Part 5 of that
Act, to the extent that it relates to the Charter of the United Nations
(Sanctions—Al‑Qaida) Regulations 2008.
(5) A certificate under subsection (4)
is not a legislative instrument.
(6) If the Minister administering the Australian
Federal Police Act 1979 issues a certificate under subsection (4) or
revokes a certificate under that subsection, he or she must give a copy of the
certificate or revocation to the Minister administering this Act.
(6A) Before the end of the following periods,
the Minister administering the Australian Federal Police Act 1979 must
consider whether to revoke a certificate under subsection (4) (if the
certificate remains in force):
(a) 12 months after it was issued;
(b) 12 months after that Minister last
considered whether to revoke it.
Overriding the Administrative Appeals Tribunal Act 1975
(7) This section has effect despite section 27A
of the Administrative Appeals Tribunal Act 1975.
Note: If subsection (2) or (3) ceases to apply
because a certificate mentioned in that subsection ceases to be in force,
section 27A of the Administrative Appeals Tribunal Act 1975 (about
notification) will apply in relation to the decision (unless the other of those
subsections still applies).
26 After subsection 51(1)
Insert:
(1A) The Minister may, in writing, delegate to
the Secretary of the Department the Minister’s power under
subsection 22A(1).
Australian Security Intelligence
Organisation Act 1979
27 Section 4 (paragraph (c) of the definition of politically
motivated violence)
Omit “the Crimes (Foreign Incursions and Recruitment) Act 1978”,
substitute “Division 119 of the Criminal Code”.
28 Paragraph 34D(4)(b)
Repeal the paragraph, substitute:
(b) that, having regard to other
methods (if any) of collecting the intelligence that are likely to be as
effective, it is reasonable in all the circumstances for the warrant to be
issued; and
29 Application of amendment
The amendment of subsection 34D(4) of the Australian
Security Intelligence Organisation Act 1979 made by this Schedule applies
to the giving of consent where that consent was sought on or after the
commencement of the amendment.
30 At the end of section 34L
Add:
(10) A person commits an offence if:
(a) the person has, in accordance with
a warrant issued under this Division, been requested to produce a record or
thing; and
(b) the person engages in conduct; and
(c) as a result of the conduct, the
record or thing is unable to be produced, or to be produced in wholly legible
or usable form.
Penalty: Imprisonment for 5 years.
31 Application of subsection 34L(10) of the Australian
Security Intelligence Organisation Act 1979
Subsection 34L(10) of the Australian Security
Intelligence Organisation Act 1979 applies to conduct occurring on or after
the commencement of the subsection, whether the warrant was or is issued under
Division 3 of Part III of that Act before, on or after that
commencement.
32 Subsection 34V(3)
Repeal the subsection, substitute:
(3) Without limiting the operation of subsection (2),
a police officer must not, in the course of an act described in subsection (1)
in relation to a person, do anything that is likely to cause the death of, or
grievous bodily harm to, the person unless the officer believes on reasonable
grounds that doing that thing is necessary to protect life or to prevent
serious injury to another person (including the officer).
33 Section 34ZZ
Omit “22 July 2016”, substitute “7 September 2018”.
34 After paragraph 36(b)
Insert:
(ba) a security assessment that is a
request under section 22A of the Australian Passports Act 2005 for
suspension of all Australian travel documents issued to a person; or
34A At the end of section 38
Add:
(7) Before the end of the following periods,
the Attorney‑General must consider whether to revoke a certificate certifying
in accordance with paragraph (2)(a) (if the certificate remains in force):
(a) 12 months after it was issued;
(b) 12 months after the Attorney‑General
last considered whether to revoke it.
34B Application
Subsection 38(7) of the Australian Security Intelligence
Organisation Act 1979 applies to certificates issued on or after the
commencement of that subsection.
Crimes Act 1914
35 Subsection 3(1) (after paragraph (a) of the
definition of terrorism offence)
Insert:
(aa) an offence against Subdivision B
of Division 80 of the Criminal Code; or
36 Subsection 3(1) (paragraph (b) of the
definition of terrorism offence)
After “Part 5.3”, insert “or 5.5”.
37 Subsection 3(1) (at the end of the definition of terrorism
offence)
Add:
; or (c) an offence against either of the
following provisions of the Charter of the United Nations Act 1945:
(i) Part 4 of that
Act;
(ii) Part 5 of that
Act, to the extent that it relates to the Charter of the United Nations
(Sanctions—Al‑Qaida) Regulations 2008.
38 Application of amendments
The amendments of the definition of terrorism offence in
subsection 3(1) of the Crimes Act 1914 made by this Schedule apply
in relation to any terrorism offence, whether the offence occurs before, on or
after the commencement of this item.
39 Part IAA (heading)
Repeal the heading, substitute:
Part IAA—Search, information gathering, arrest and related powers (other
than powers under delayed notification search warrants)
40 Subsection 3C(1)
(at the end of the definition of issuing officer)
Add:
Note: Under section 3ZZBJ, an eligible issuing
officer (within the meaning of Part IAAA) may, as specified in that section,
consider and deal with an application for a warrant as if the eligible issuing
officer were an issuing officer within the meaning of this Part.
41 Subsections 3D(1) and (2)
After “another law of the Commonwealth”, insert “(including other
provisions of this Act)”.
42 After subsection 3E(1)
Insert:
Note: For the issue of delayed notification search
warrants, see Part IAAA.
43 Subsection 3UK(1)
Omit “the end of 10 years after the day on which the Division
commences”, substitute “7 September 2018”.
44 Subsection 3UK(2)
Omit “10 years after the day on which this Division commences”,
substitute “7 September 2018”.
45 Subsection 3UK(3)
Omit “the end of 10 years after the day on which this Division
commences”, substitute “7 September 2018”.
46 Subsection 3W(1)
After “offence” (first occurring), insert “(other than a
terrorism offence and an offence against section 80.2C of the Criminal
Code)”.
47 After section 3W
Insert:
3WA
Constables’ power of arrest without warrant for a terrorism offence or offence
of advocating terrorism
(1) A constable may, without warrant, arrest
a person for a terrorism offence or an offence against section 80.2C of
the Criminal Code if the constable suspects on reasonable grounds that:
(a) the person has committed or is
committing the offence; and
(b) proceedings by summons against the
person would not achieve one or more of the following purposes:
(i) ensuring the
appearance of the person before a court in respect of the offence;
(ii) preventing a
repetition or continuation of the offence or the commission of another offence;
(iii) preventing the
concealment, loss or destruction of evidence relating to the offence;
(iv) preventing harassment
of, or interference with, a person who may be required to give evidence in
proceedings in respect of the offence;
(v) preventing the
fabrication of evidence in respect of the offence;
(vi) preserving the safety
or welfare of the person.
(2) If:
(a) a person has been arrested for an
offence under subsection (1); and
(b) before the person is charged with
the offence, the constable in charge of the investigation ceases to suspect on
reasonable grounds:
(i) that the person
committed the offence; or
(ii) that holding the
person in custody is necessary to achieve a purpose referred to in paragraph (1)(b);
the person must be released.
48 Application of amendments
The amendment of section 3W of the Crimes Act 1914
made by this Schedule, and section 3WA of that Act, apply to an arrest made
after this item commences (whether the alleged offence in relation to which the
arrest is made is believed or suspected of having been committed before, on or
after that commencement).
49 Paragraph 3ZB(2)(a)
After “section 3W”, insert “or 3WA”.
50 Paragraph 3ZQN(3)(e)
Repeal the paragraph, substitute:
(e) specify the day by which the
person must comply with the notice, being a day that is at least:
(i) 14 days after the
giving of the notice; or
(ii) if the officer
believes that it is appropriate, having regard to the urgency of the situation,
to specify an earlier day—3 days after the giving of the notice; and
51 After Part IAA
Insert:
Part IAAA—Delayed notification search warrants
Division 1—Preliminary
3ZZAA
Object of this Part
(1) The object of this Part is to provide for
eligible agencies to obtain search warrants:
(a) that relate to eligible offences;
and
(b) that authorise the entry and
search of premises without having to produce the warrant at the time of entry
and search.
(2) A warrant issued under this Part is a delayed
notification search warrant.
(3) An eligible agency is the
Australian Federal Police.
(4) An eligible offence is a
terrorism offence that is punishable on conviction by imprisonment for 7 years
or more.
3ZZAB
Application of Part
(1) This Part is not intended to limit or
exclude the operation of another law of the Commonwealth (including other
provisions of this Act) relating to:
(a) the search of premises; or
(b) the seizure of things; or
(c) the use of an assumed identity; or
(d) the installation of surveillance
devices (within the meaning of the Surveillance Devices Act 2004).
(2) To avoid doubt, it is declared that even
though another law of the Commonwealth provides power to do one or more of the
things referred to in subsection (1), a similar power conferred by this
Part may be used despite the existence of the power under the other law.
3ZZAC
Definitions
In this Part:
adjoining premises, in relation
to particular premises, means premises adjoining, or providing access, to the
premises.
adjoining premises occupier’s notice: see
section 3ZZDB.
applicable normal search warrant regime: see
subsection 3ZZBJ(2).
authorised agency means the Australian
Federal Police.
chief officer, in relation to an authorised
agency or eligible agency, means the Commissioner.
conditions for issue: see section 3ZZBA.
damage, in relation to data, includes damage
by erasure of data or addition of other data.
day of execution of a delayed notification
search warrant means the day on which the warrant premises were first entered
under the warrant.
delayed notification search warrant: see
subsection 3ZZAA(2).
eligible agency: see subsection 3ZZAA(3).
eligible issuing officer: see subsection 3ZZAD(1).
eligible offence: see subsection 3ZZAA(4).
eligible officer of an authorised agency or
eligible agency means a member or special member of the Australian Federal
Police.
emergency situation, in relation to the
execution of a delayed notification search warrant in relation to premises,
means a situation that the executing officer or a person assisting believes, on
reasonable grounds, involves a serious and imminent threat to a person’s life,
health or safety that requires the executing officer and persons assisting to
leave the premises.
evidential material means a thing relevant to
an eligible offence, or an indictable offence, that has been, is being, is
about to be or is likely to be committed.
executing officer, in relation to a delayed
notification search warrant, means:
(a) the eligible officer of the
authorised agency who is named in the warrant by the eligible issuing officer as
being responsible for executing the warrant; or
(b) if that eligible officer does not
intend to be present at the execution of the warrant—another eligible officer
of the authorised agency whose name has been written in the warrant by the
eligible officer so named; or
(c) another eligible officer of the
authorised agency whose name has been written in the warrant by the eligible
officer of the authorised agency last named in the warrant.
inspecting officer means a person appointed
under subsection 3ZZGA(1).
nominated AAT member means a person in
relation to whom a nomination is in force under section 3ZZAF.
person assisting, in relation to a delayed
notification search warrant, means:
(a) a person who is an eligible
officer of the authorised agency and who is assisting in the execution
of the warrant; or
(b) another person who has been
authorised by the executing officer to assist in executing the warrant.
premises includes a place and a conveyance.
relevant eligible agency, in relation to a
thing seized under this Part, is the eligible agency whose chief officer
authorised the application for the delayed notification search warrant under
which the thing was seized.
staff member of an authorised agency or
eligible agency means a person referred to in paragraph (a) of the
definition of law enforcement officer in subsection 3(1).
State or Territory agency: see section 3ZZGF.
State or Territory inspecting authority: see
section 3ZZGF.
State or Territory law enforcement agency
means:
(a) the police force or police service
of a State or Territory; or
(b) the New South Wales Crime
Commission constituted by the Crime Commission Act 2012 (NSW); or
(c) the Independent Commission Against
Corruption constituted by the Independent Commission Against Corruption Act
1988 (NSW); or
(d) the Police Integrity Commission
constituted by the Police Integrity Commission Act 1996 (NSW); or
(e) the Independent Broad‑based Anti‑corruption
Commission established by the Independent Broad‑based Anti‑corruption
Commission Act 2011 (Vic.); or
(f) the Crime and Corruption
Commission established by the Crime and Corruption Act 2001 (Qld); or
(g) the Corruption and Crime
Commission established by the Corruption and Crime Commission Act 2003
(WA); or
(h) the Independent Commissioner
Against Corruption established by the Independent Commissioner Against
Corruption Act 2012 (SA); or
(i) the Integrity Commission
established by the Integrity Commission Act 2009 (Tas.).
thing includes a thing in electronic form.
warrant premises means premises in relation
to which a delayed notification search warrant is in force, but does not
include any adjoining premises that are also authorised to be entered under the
warrant.
warrant premises occupier’s notice: see
section 3ZZDA.
3ZZAD
Eligible issuing officers
(1) An eligible issuing officer
is:
(a) a person:
(i) who is a Judge of the
Federal Court of Australia, or a Judge of the Supreme Court of a State or
Territory; and
(ii) in relation to whom a
consent under subsection 3ZZAE(1), and a declaration under subsection 3ZZAE(2),
are in force; or
(b) a nominated AAT member.
(2) A function or power conferred on a Judge
by this Part is conferred on the Judge in a personal capacity and not as a
court or a member of a court.
(3) A Judge has, in relation to the
performance or exercise of a function or power conferred on an eligible issuing
officer by this Part, the same protection and immunity as if he or she were
performing that function, or exercising that power, as, or as a member of, a court
(being the court of which the Judge is a member).
Note: A member of the Administrative Appeals
Tribunal has the same protection and immunity as a Justice of the High Court
(see subsection 60(1) of the Administrative Appeals Tribunal Act 1975).
3ZZAE
Consent of Judges
(1) A Judge of the Federal Court of
Australia, or of the Supreme Court of a State or Territory, may, by writing,
consent to be declared an eligible issuing officer by the Minister under subsection (2).
(2) The Minister may, by writing, declare a
Judge in relation to whom a consent under subsection (1) is in force to be
an eligible issuing officer for the purposes of this Part.
(3) A consent or declaration under this
section is not a legislative instrument.
3ZZAF
Nominated AAT members
(1) The Minister may, by writing, nominate a
person who holds one of the following appointments to the Administrative
Appeals Tribunal to issue delayed notification search warrants and perform
related functions under this Act:
(a) Deputy President;
(b) full‑time senior member.
(2) Despite subsection (1), the Minister
must not nominate a person who holds an appointment as a full‑time senior
member of the Tribunal unless the person:
(a) is enrolled as a legal
practitioner of the High Court, of another federal court or of the Supreme
Court of a State or of the Australian Capital Territory; and
(b) has been so enrolled for not less
than 5 years.
(3) A nomination ceases to be in force if:
(a) the nominated AAT member ceases to
hold an appointment described in subsection (1); or
(b) the Minister, by writing,
withdraws the nomination.
Division 2—Issue of delayed
notification search warrants
Subdivision A—The normal process for applying for and issuing delayed
notification search warrants
3ZZBA
The conditions for issue of a delayed notification search warrant
A person is satisfied that the conditions
for issue of a delayed notification search warrant are met in respect
of particular premises if the person:
(a) suspects, on reasonable grounds,
that one or more eligible offences have been, are being, are about to be or are
likely to be committed; and
(b) suspects, on reasonable grounds,
that entry and search of the premises will substantially assist in the prevention
or investigation of one or more of those offences; and
(c) believes, on reasonable grounds,
that it is necessary for the entry and search of the premises to be conducted
without the knowledge of the occupier of the premises or any other person
present at the premises.
3ZZBB
Authorisation to apply for a delayed notification search warrant
(1) The chief officer of an eligible agency
may, in writing, authorise an eligible officer of the agency to apply for a
delayed notification search warrant in respect of particular premises if the
chief officer is satisfied that the conditions for issue are met.
(2) The chief officer of an eligible agency
may orally (in person or by telephone or other means of voice communication)
authorise an eligible officer of the agency to apply for a delayed notification
search warrant in respect of particular premises if the chief officer is
satisfied that:
(a) the conditions for issue are met;
and
(b) either:
(i) it is an urgent case;
or
(ii) the delay that would
occur if the authorisation were in writing would frustrate the effective
execution of the delayed notification search warrant.
(3) If the chief officer of an eligible
agency gives an authorisation under subsection (2), he or she must make a
written record of the authorisation within 7 days.
3ZZBC
Applying for a delayed notification search warrant
(1) An eligible officer of an eligible agency
may apply to an eligible issuing officer for a delayed notification search
warrant in respect of particular premises if the officer is authorised under
section 3ZZBB to apply for the warrant.
Note 1: The application will need to address:
(a) why the conditions for issue are met (see section 3ZZBA);
and
(b) other matters the eligible issuing officer must have
regard to (see subsection 3ZZBD(2)); and
(c) matters that must be specified in the warrant (see
subsection 3ZZBE(1)).
Note 2: In urgent cases or certain other cases, an
application may be made by telephone, fax or other electronic means: see
section 3ZZBF.
(2) The eligible officer must provide the
eligible issuing officer with:
(a) a copy of, or details of, the
authorisation under section 3ZZBB; and
(b) particulars of any applications,
and the outcomes, so far as known to the eligible officer, of any previous
applications, in respect of the premises, for a warrant under this Part or
Division 2 of Part IAA.
(3) The application must be supported by an
affidavit setting out the grounds on which the warrant is sought.
(4) The eligible issuing officer may request
further information relating to the application, and may require that the
information be provided on oath or affirmation.
3ZZBD
Issuing a delayed notification search warrant
(1) If:
(a) an eligible officer applies to an
eligible issuing officer, in accordance with section 3ZZBC, for a delayed
notification search warrant in respect of particular premises (the main
premises); and
(b) the eligible issuing officer is
satisfied, by information on oath or affirmation, that the conditions for issue
are met;
the eligible issuing officer may issue a delayed
notification search warrant in respect of the premises.
(2) In determining whether the delayed
notification search warrant should be issued, the eligible issuing officer must
have regard to the following:
(a) the extent to which the exercise of
the powers under the warrant would assist the prevention or investigation of
the eligible offence to which the application for the warrant relates;
(b) the existence of alternative means
of obtaining the evidence or information sought to be obtained;
(c) the extent to which the privacy of
any person is likely to be affected;
(d) the nature and seriousness of that
offence;
(e) if it is proposed that adjoining
premises be entered for the purpose of entering the main premises—whether
allowing entry to the adjoining premises is reasonably necessary:
(i) to enable entry to the
main premises; and
(ii) to avoid compromising
the prevention or investigation of that offence;
(f) any conditions to which the
warrant should be subject;
(g) the outcome, so far as known to
the eligible issuing officer, of any previous application, in respect of the
main premises, for a warrant under this Part or Division 2 of Part IAA.
(3) An eligible issuing officer of the
Federal Court of Australia or the Administrative Appeals Tribunal may
issue a delayed notification search warrant in relation to premises located
anywhere in the Commonwealth or an external Territory.
(4) An eligible issuing officer of the
Supreme Court of a State or Territory may issue a delayed notification search
warrant only in relation to premises located in that State or Territory.
3ZZBE
Contents of a delayed notification search warrant
(1) A delayed notification search warrant
must specify the following:
(a) the name of the applicant;
(b) the name of the authorised agency;
(c) the name of the eligible officer
of that agency who, unless he or she inserts the name of another such eligible
officer in the warrant, is to be responsible for executing the warrant;
(d) the address, location or other
description of the warrant premises;
(e) the eligible offence to which the
warrant relates;
(f) whether the warrant authorises
the entry of adjoining premises, and if it does, the address, location or other
description of the adjoining premises;
(g) the day on which, and the time at
which, the warrant is issued;
(h) the day on which, and the time at
which, the warrant expires (which must be a time on a day that is not more than
30 days after the day on which the warrant is issued);
(i) the time by which notice of entry
of premises under the warrant is to be given (expressed as a time on a
specified day that is not more than 6 months after the day on which the warrant
is issued);
(j) a description of the kinds of
things that may be searched for, seized, copied, photographed, recorded, marked,
tagged, operated, printed, tested or sampled;
(k) whether the warrant authorises a
thing to be placed in substitution for a thing seized under the warrant or
moved under subsection 3ZZCE(2);
(l) whether the warrant authorises
the re‑entry of the warrant premises, and any adjoining premises authorised to
be entered, to:
(i) return to the warrant
premises any thing seized under the warrant or moved under subsection 3ZZCE(2);
or
(ii) retrieve any thing
substituted at the warrant premises for a thing seized under the warrant or
moved under subsection 3ZZCE(2);
(m) if the warrant authorises such re‑entry—that
the re‑entry must be within:
(i) 14 days of the day of
execution of the warrant; or
(ii) if a thing is moved under
subsection 3ZZCE(2) and the time for which it may be examined or processed
is more than 14 days because of an extension under section 3ZZCE—that time
as extended under that section;
(n) any conditions to which the
warrant is subject;
(o) that the eligible issuing officer
is satisfied as mentioned in paragraph 3ZZBD(1)(b), and has had regard to
the matters specified in subsection 3ZZBD(2).
Note 1: Regarding paragraph (i):
(a) the specified time is the time by which a warrant
premises occupier’s notice, and any adjoining premises occupier’s notice, must
be given (subject to subsections 3ZZDA(4), 3ZZDB(4) and 3ZZDC(3)); and
(b) the specified time can be extended (see subsection 3ZZDC(5)).
Note 2: Regarding the period described in paragraph (m),
see also subsection 3ZZCA(3).
(2) The warrant must be signed by the
eligible issuing officer who issued it and include his or her name.
Subdivision B—Delayed notification search warrants by telephone, fax etc.
3ZZBF
Delayed notification search warrants by telephone, fax etc.
When this section applies
(1) This section applies if the requirements
specified in subsection 3ZZBC(1) for when an eligible officer of an
eligible agency may apply for a delayed notification search warrant in respect
of particular premises are satisfied.
Note: This section sets out an alternative method of
applying for and issuing delayed notification search warrants.
Application for delayed notification search warrant
(2) The eligible officer may apply to an
eligible issuing officer by telephone, fax or other electronic means for a
delayed notification search warrant in respect of the premises:
(a) if it is an urgent case; or
(b) if the delay that would occur if
the application were made in person would frustrate the effective execution of
the delayed notification search warrant.
(3) The eligible issuing officer:
(a) may require communication by voice
to the extent that it is practicable in the circumstances; and
(b) may make a recording of the whole
or any part of any such communication by voice.
(4) The application must:
(a) include all information required
to be provided in an ordinary application for a delayed notification search
warrant, but the application may, if necessary, be made before the information
is sworn or affirmed; and
(b) include details of, or be
accompanied by a copy of, the authorisation under section 3ZZBB.
Eligible issuing officer may complete and sign warrant
(5) The eligible issuing officer may complete
and sign the same delayed notification search warrant that would have been
issued under section 3ZZBD if, after:
(a) considering the information and
having received and considered such further information (if any) as the
eligible issuing officer required; and
(b) having regard to the matters
specified in subsection 3ZZBD(2);
the eligible issuing officer is satisfied:
(c) that the conditions for issue are
met; and
(d) that:
(i) a delayed notification
search warrant in the terms of the application should be issued urgently; or
(ii) the delay that would
occur if an application were made in person would frustrate the effective
execution of the delayed notification search warrant.
(6) After completing and signing the delayed
notification search warrant, the eligible issuing officer must inform the
applicant, by telephone, fax or other electronic means, of:
(a) the terms of the warrant; and
(b) the day on which, and the time at
which, the warrant was signed.
Obligations on applicant
(7) The applicant must then do the following:
(a) complete a form of delayed
notification search warrant in the same terms as the warrant completed and
signed by the eligible issuing officer;
(b) state on the form the following:
(i) the name of the
eligible issuing officer;
(ii) the day and time of
signing of the warrant;
(c) send the following to the eligible
issuing officer:
(i) the form of warrant
completed by the applicant;
(ii) the information
referred to in subsection (4), which must have been duly sworn or affirmed.
(8) The applicant must comply with paragraph (7)(c)
by the end of the day after the earlier of the following:
(a) the day on which the delayed
notification search warrant expires;
(b) the day of execution of the
warrant.
Eligible issuing officer to attach documents together
(9) The eligible issuing officer must attach
the documents provided under paragraph (7)(c) to the delayed notification
search warrant signed by the eligible issuing officer.
3ZZBG
Authority of delayed notification search warrant by telephone, fax etc.
(1) A form of delayed notification search warrant
duly completed under subsection 3ZZBF(7) is authority for the same powers
as are authorised by the warrant signed by the eligible issuing officer under
subsection 3ZZBF(5).
(2) In any proceedings, a court is to assume
(unless the contrary is proved) that an exercise of power was not authorised by
a delayed notification search warrant under section 3ZZBF if:
(a) it is material, in those
proceedings, for the court to be satisfied that the exercise of power was duly
authorised by the warrant; and
(b) the delayed notification search warrant
signed by the eligible issuing officer authorising the exercise of the power is
not produced in evidence.
Subdivision C—Offences relating to applying for warrants etc.
3ZZBH
Offence for making false statement in application for delayed notification
search warrant
A person must not make, in an
application for a delayed notification search warrant, a statement that the
person knows to be false or misleading in a material particular.
Penalty: Imprisonment for 2 years.
3ZZBI
Offence relating to delayed notification search warrant by telephone, fax etc.
A person must not:
(a) state in a document that purports
to be a form of delayed notification search warrant under section 3ZZBF
the name of an eligible issuing officer unless that eligible issuing officer
issued the warrant; or
(b) state on a form of delayed
notification search warrant under that section a matter that, to the person’s
knowledge, departs in a material particular from the form authorised by the
eligible issuing officer; or
(c) purport to execute, or present to
a person, a document that purports to be a form of delayed notification search warrant
under that section that the person knows:
(i) has not been approved
by an eligible issuing officer under that section; or
(ii) departs in a material
particular from the terms authorised by an eligible issuing officer under that
section; or
(d) give to an eligible issuing
officer a form of delayed notification search warrant under that section that
is not the form of warrant that the person purported to execute.
Penalty: Imprisonment for 2 years.
Subdivision D—Interaction with other provisions under which search
warrants may be issued
3ZZBJ Issue
of warrants under other provisions as well as or instead of delayed
notification search warrants
When this section applies
(1) This section applies if an eligible
officer of an eligible agency, under an authorisation under section 3ZZBB
from the chief officer of the agency, makes an application (the delayed
notification search warrant application) to an eligible issuing officer
for a delayed notification search warrant:
(a) in respect of particular premises;
and
(b) in relation to a particular
eligible offence.
(2) The applicable normal search
warrant regime is Division 2 of Part IAA.
Application may be made to eligible issuing officer for
normal search warrant
(3) The eligible officer may, at the same
time or subsequently, make an application to the eligible issuing officer for
the issue of a warrant, under the applicable normal search warrant regime, to
search the premises or other premises for evidential material relevant to the
eligible offence or to another offence connected to the eligible offence.
(4) If the eligible issuing officer is not a
person who is authorised to issue warrants under the applicable normal search
warrant regime, the eligible issuing officer may consider and deal with an
application made as mentioned in subsection (3) as if the eligible issuing
officer were such a person.
Eligible issuing officer may instead treat application
as if it were made under applicable normal search warrant regime
(5) If the eligible issuing officer is not
satisfied that a delayed notification search warrant in respect of the premises
should be issued, the eligible issuing officer may:
(a) treat the delayed notification
search warrant application as if it were an application for a warrant under the
applicable normal search warrant regime (even if such an application has not
been made); and
(b) consider and deal with the
application under that regime:
(i) as if the application
had been validly made under that regime; and
(ii) if the eligible
issuing officer is not a person who is authorised to issue warrants under the
applicable normal search warrant regime—as if the eligible issuing officer were
such a person.
Division 3—Exercise of powers under delayed notification search warrants
3ZZCA
What is authorised by a delayed notification search warrant
(1) A delayed notification search warrant
authorises the executing officer or a person assisting to do any of the
following:
(a) to enter the warrant premises;
(b) if the warrant authorises the
entry of adjoining premises—to enter the adjoining premises solely for the
purpose of entering or leaving the warrant premises;
(c) to impersonate another person to
the extent reasonably necessary for executing the warrant;
(d) to search the warrant premises for
the kinds of things (if any) specified in the warrant as the kinds of things
that may be searched for;
(e) to seize any thing of a kind
specified in the warrant as a kind of thing that may be seized;
(f) to seize other things found in
the course of executing the warrant at the warrant premises that the executing
officer or a person assisting believes on reasonable grounds to be evidential
material, if the executing officer or a person assisting believes on reasonable
grounds that the seizure of the things is necessary to prevent their concealment,
loss or destruction or their use in committing any offence;
(g) to seize any thing found in the
course of executing the warrant at the warrant premises that the executing
officer or a person assisting believes on reasonable grounds:
(i) would present a danger
to a person; or
(ii) could be used to
assist a person to escape from lawful custody;
(h) to search for and record
fingerprints found at the premises and to take samples of things found at the
premises for forensic purposes;
(i) if specified in the warrant—to
place a thing in substitution for a thing seized or moved under subsection 3ZZCE(2);
(j) to do any of the following acts
to a thing found in the course of executing the warrant at the warrant premises
that is of a kind specified in the warrant as the kind of thing to which the
act may be done, or that the executing officer or a person assisting believes
on reasonable grounds to be evidential material:
(i) copy the thing;
(ii) photograph or
otherwise record the thing;
(iii) mark or tag the thing
(whether or not the mark or tag can be detected only with the use of a device);
(iv) operate the thing;
(v) print the thing;
(vi) test the thing;
(vii) sample the thing;
(k) to do anything reasonably
necessary to conceal the fact that any thing has been done under the warrant;
(l) if specified in the warrant—to re‑enter:
(i) the warrant premises;
and
(ii) if the warrant
authorises the entry of adjoining premises—the adjoining premises solely for
the purpose of entering or leaving the warrant premises;
within the period described in
paragraph 3ZZBE(1)(m), for the purpose of returning any thing seized from
the warrant premises or moved under subsection 3ZZCE(2), or retrieving any
thing substituted at the premises for a thing seized or moved under that
subsection;
(m) to exercise the other powers
conferred on the executing officer, or a person assisting, by the other
provisions of this Division.
Note: Paragraph (c) does not authorise the
acquisition or use of an assumed identity (see Part IAC). The protection
provided by Part IAC only applies if the requirements of that Part have
been complied with.
(2) The entry of premises under a paragraph
of subsection (1) may be effected without the knowledge of the occupier of
the premises or any other person present at the premises.
(3) If the period referred to in paragraph (1)(l)
ends after the delayed notification search warrant expires, the powers referred
to in that paragraph may be exercised during that period as if the warrant were
still in force.
3ZZCB
Specific powers available to person executing warrant
Photography
(1) In executing a delayed notification
search warrant, the executing officer or a person assisting may, for a purpose
incidental to the execution of the warrant, take photographs (including video
recordings) of the warrant premises or of things at the warrant premises.
Completion of execution of warrant after brief
interruption
(2) If a delayed notification search warrant
in relation to premises is being executed, the executing officer and the
persons assisting may, if the warrant is still in force, complete the execution
of the warrant after all of them temporarily cease its execution and leave the
premises:
(a) for not more than one hour; or
(b) for not more than 24 hours, or
such longer period as allowed by an eligible issuing officer under section 3ZZCC,
if they leave the premises:
(i) because of an
emergency situation; or
(ii) to reduce the risk of
discovery of the fact that a law enforcement officer has been on the premises.
Completion of execution of warrant after court
proceedings
(3) If:
(a) the execution of a delayed
notification search warrant is stopped by an order of a court; and
(b) the order is later revoked or
reversed on appeal; and
(c) the warrant is still in force;
the execution of the warrant may be completed.
3ZZCC
Extension of time to re‑enter premises left in emergency situation or to avoid
discovery of law enforcement officer
(1) If:
(a) a delayed notification search
warrant in relation to premises is being executed; and
(b) the executing officer and the
persons assisting (if any) leave the premises for a reason described in
subparagraph 3ZZCB(2)(b)(i) or (ii); and
(c) the executing officer or a person
assisting believes on reasonable grounds that the executing officer and the
persons assisting will not be able to return to the premises within the 24‑hour
period mentioned in paragraph 3ZZCB(2)(b);
he or she may apply to an eligible issuing officer for an
extension of that period.
(2) If an application mentioned in subsection (1)
has been made, an eligible issuing officer may extend the period during which
the executing officer and persons assisting may be away from the premises if:
(a) the eligible issuing officer is
satisfied, by information on oath or affirmation, that there are circumstances
that justify the extension; and
(b) the extension would not result in
the period ending after the expiry of the warrant.
3ZZCD
Executing a warrant—assistance, use of force and related matters
(1) In executing a delayed notification
search warrant:
(a) the executing officer may obtain
such assistance; and
(b) the executing officer, or an
eligible officer who is a person assisting, may use such force against persons
and things; and
(c) a person assisting who is not an
eligible officer may use such force against things;
as is necessary and reasonable in the circumstances.
(2) At any time when the executing officer is
at warrant premises, or adjoining premises, under a delayed notification search
warrant, the executing officer must have in his or her possession, or be in a
position to produce without delay:
(a) a copy of the warrant; or
(b) if the warrant was issued under
section 3ZZBF—a copy of the form of warrant completed under subsection 3ZZBF(7).
(3) To avoid doubt, subsection (2) does
not require the executing officer to produce a copy of the warrant or the form
of warrant.
3ZZCE
Use of equipment to examine or process things
Equipment may be brought onto warrant premises
(1) In executing a delayed notification
search warrant, the executing officer or a person assisting may bring to the
warrant premises any equipment reasonably necessary for the examination or
processing of a thing found at the premises in order to determine whether it is
a thing that may be seized under the warrant.
Thing may be moved for examination or processing
(2) A thing found at the warrant premises may
be moved to another place for examination or processing in order to determine
whether it may be seized under the delayed notification search warrant if:
(a) it is significantly more
practicable to do so having regard to the timeliness and cost of examining or
processing the thing at another place and the availability of expert
assistance; and
(b) the executing officer or a person
assisting suspects on reasonable grounds that the thing contains or constitutes
a thing that may be seized under the warrant.
Note: Sections 3ZZCG and 3ZZCH authorise
operation of electronic equipment moved under this section.
Time limit on moving a thing
(3) The thing may be moved to another place
for examination or processing for no longer than 14 days.
(4) An executing officer may apply to an
eligible issuing officer for one or more extensions of that time if the
executing officer believes on reasonable grounds that the thing cannot be
examined or processed within 14 days or that time as previously extended.
(5) A single extension cannot exceed 7 days.
Equipment at warrant premises may be operated
(6) The executing officer or a person
assisting may operate equipment already at the warrant premises to carry out
the examination or processing of a thing found at the premises, if the
executing officer or person believes on reasonable grounds that:
(a) the equipment is suitable for the
examination or processing; and
(b) the examination or processing can
be carried out without damage to the equipment or the thing.
3ZZCF
Use of electronic equipment at warrant premises
Use of electronic equipment to access data
(1) In executing a delayed notification
search warrant, the executing officer or a person assisting may operate
electronic equipment at the warrant premises to access data (including data not
held at the premises) if he or she suspects on reasonable grounds that the data
constitutes a thing that may be seized under the warrant.
Copy of data onto disk, tape or other device
(2) If the executing officer or person
assisting suspects on reasonable grounds that any data accessed by operating
the electronic equipment constitutes a thing that may be seized under the
warrant, he or she may copy the data to a disk, tape or other associated device
and take the disk tape or device from the warrant premises.
(3) If:
(a) under subsection (2), the
executing officer or person assisting copies data to a disk, tape or device;
and
(b) the chief officer of the
authorised agency is satisfied that the data is not required, is no longer
required, or is not likely to be required, for a purpose mentioned in section 3ZZEA;
the chief officer must arrange for:
(c) the removal of the data from any
device in the control of the authorised agency; and
(d) the destruction of any other
reproduction of the data in the control of the authorised agency.
Powers if thing that may be seized is accessible by operating
equipment
(4) If the executing officer or a person
assisting, after operating the electronic equipment, finds that a thing that
may be seized under the warrant is accessible by doing so, he or she may:
(a) seize the equipment and any disk,
tape or other associated device; or
(b) if the thing can, by using
facilities at the warrant premises, be put in documentary form—operate the
facilities to put the thing in that form and seize the documents so produced.
(5) The executing officer or a person
assisting may seize equipment under paragraph (4)(a) only if:
(a) it is not practicable to copy the
data as mentioned in subsection (2) or to put the thing that may be seized
in documentary form as mentioned in paragraph (4)(b); or
(b) possession of the equipment, by
the occupier of the warrant premises, could constitute an offence.
3ZZCG
Use of moved electronic equipment at other place
(1) If electronic equipment is moved to
another place under subsection 3ZZCE(2), the executing officer or a person
assisting may operate the equipment to access data (including data held at
another place).
(2) If the executing officer or person
assisting suspects on reasonable grounds that any data accessed by operating
the electronic equipment constitutes a thing that may be seized under the
warrant, he or she may copy any or all of the data accessed by operating the
electronic equipment to a disk, tape or other associated device.
(3) If the chief officer of the authorised
agency is satisfied that the data is not required, is no longer required, or is
not likely to be required, for a purpose mentioned in section 3ZZEA, the
chief officer must arrange for:
(a) the removal of the data from any
device in the control of the authorised agency; and
(b) the destruction of any other
reproduction of the data in the control of the authorised agency.
(4) If the executing officer or a person
assisting, after operating the equipment, finds that a thing that may be seized
under the warrant is accessible by doing so, he or she may:
(a) seize the equipment and any disk,
tape or other associated device; or
(b) if the thing can be put in
documentary form—put the thing in that form and seize the documents so produced.
(5) The executing officer or a person
assisting may seize equipment under paragraph (4)(a) only if:
(a) it is not practicable to copy the
data as mentioned in subsection (2) or to put the thing that may be seized
in documentary form as mentioned in paragraph (4)(b); or
(b) possession of the equipment, by
the occupier of the warrant premises, could constitute an offence.
3ZZCH
Operating seized or moved electronic equipment
(1) This section applies to electronic
equipment seized under this Part or moved under section 3ZZCE.
(2) The electronic equipment may be operated
at any location after it has been seized or moved, for the purpose of
determining whether data that is a thing that may be seized under the relevant
delayed notification search warrant is held on or accessible from the electronic
equipment, and obtaining access to such data.
(3) The data referred to in subsection (2)
includes, but is not limited to, the following:
(a) data held on the electronic
equipment, including data held on the electronic equipment when operated under
this section that was not held on the electronic equipment at the time the
electronic equipment was seized;
(b) data not held on the electronic
equipment but accessible by using it, including data that was not accessible at
the time the electronic equipment was seized.
(4) The electronic equipment may be operated
before or after the expiry of the relevant delayed notification search warrant.
(5) This section does not limit the operation
of other provisions of this Part that relate to dealing with items seized under
this Part or moved under section 3ZZCE.
Note: For example, this section does not affect the
operation of the time limits in section 3ZZCE on examination or processing
of a thing moved under that section.
3ZZCI
Compensation for damage to electronic equipment
(1) This section applies if:
(a) as a result of equipment being
operated as mentioned in section 3ZZCE, 3ZZCF, 3ZZCG or 3ZZCH:
(i) damage is caused to
the equipment; or
(ii) damage is caused to
data recorded on the equipment or data access to which was obtained from the
operation of the equipment; or
(iii) programs associated
with the use of the equipment, or with the use of the data, are damaged or
corrupted; and
(b) the damage or corruption occurs because:
(i) insufficient care was
exercised in selecting the person who was to operate the equipment; or
(ii) insufficient care was
exercised by the person operating the equipment.
(2) The Commonwealth must pay the owner of
the equipment, or the user of the data or programs, such reasonable
compensation for the damage or corruption as the Commonwealth and the owner or
user agree on.
(3) However, if the owner or user and the
Commonwealth fail to agree, the owner or user may institute proceedings in the
Federal Court of Australia for such reasonable amount of compensation as the
court determines.
Division 4—Notice to occupiers
3ZZDA
Warrant premises occupier’s notice must be prepared and given
(1) As soon as practicable after the exercise
of powers under a delayed notification search warrant has been completed, the
executing officer must prepare a written notice (the warrant premises
occupier’s notice) that complies with subsection (2).
(2) The warrant premises occupier’s notice
must:
(a) specify the name of the authorised
agency; and
(b) specify the day on which, and the
time at which, the warrant was issued; and
(c) specify the day of execution of
the warrant; and
(d) specify the address, location or
other description of the warrant premises; and
(e) specify the number of persons who
entered the warrant premises for the purposes of executing, or assisting in the
execution of, the warrant; and
(f) include a summary of:
(i) the purpose of delayed
notification search warrants (including a statement to the effect that they are
to authorise entry and search of premises to be conducted without the knowledge
of the occupier of the premises or any other person present at the
premises); and
(ii) the things done under
the warrant; and
(g) describe any thing seized from the
warrant premises and state whether a thing was placed in substitution for the
seized thing; and
(h) state whether any thing was
returned to, or retrieved from, the warrant premises and the date on which this
occurred.
(3) Subject to subsection (4), a staff
member of the authorised agency must give the warrant premises occupier’s
notice, and a copy of the warrant (or the form of warrant completed under
subsection 3ZZBF(7)), to the person (the occupier) who was
the occupier of the warrant premises when they were entered under the warrant.
The notice, and the copy of the warrant (or form of warrant), must be given to
the occupier by the time applicable under section 3ZZDC.
(4) If the occupier cannot be identified or
located, a staff member of the authorised agency must report back to an
eligible issuing officer, and the eligible issuing officer may give such
directions as the eligible issuing officer thinks fit.
(5) A notice and a direction under this
section are not legislative instruments.
3ZZDB
Adjoining premises occupier’s notice must be prepared and given
(1) As soon as practicable after adjoining
premises are entered under a delayed notification search warrant, the executing
officer must prepare a written notice (the adjoining premises occupier’s
notice) that complies with subsection (2).
(2) The adjoining premises occupier’s notice
must specify:
(a) the name of the authorised agency;
and
(b) the day on which, and the time at
which, the warrant was issued; and
(c) the day of execution of the
warrant; and
(d) the address, location or other
description of:
(i) the warrant premises;
and
(ii) the adjoining
premises; and
(e) the purpose of delayed
notification search warrants, including:
(i) a statement to the
effect that they are to authorise entry and search of warrant premises to be
conducted without the knowledge of the occupier of those premises or any other
person present at those premises; and
(ii) a statement that
adjoining premises may be entered solely for the purpose of entering or leaving
the warrant premises.
(3) Subject to subsection (4), a staff
member of the authorised agency must give the adjoining premises occupier’s
notice, and a copy of the warrant (or the form of warrant completed under
subsection 3ZZBF(7)), to the person (the occupier) who was
the occupier of the adjoining premises when they were entered under the warrant.
The notice, and the copy of the warrant, must be given to the occupier by the
time applicable under section 3ZZDC.
(4) If the occupier cannot be identified or
located, a staff member of the authorised agency must report back to an
eligible issuing officer, and the eligible issuing officer may give such
directions as the eligible issuing officer thinks fit.
(5) A notice and a direction under this
section are not legislative instruments.
3ZZDC
Time for giving warrant premises occupier’s notice or adjoining premises
occupier’s notice
Section determines time by which notice must be given
(1) This section:
(a) applies if a warrant premises
occupier’s notice, or an adjoining premises occupier’s notice, is prepared in
relation to a delayed notification search warrant; and
(b) determines the time by which the
notice (and a copy of the warrant, or the form of warrant) must be given in
accordance with subsection 3ZZDA(3) or 3ZZDB(3).
Note: This section has effect subject to any
directions given under subsection 3ZZDA(4) or 3ZZDB(4).
General rule
(2) Subject to subsection (3), the
notice (and the copy of the warrant or form of warrant) must be given by:
(a) the time specified under paragraph 3ZZBE(1)(i);
or
(b) if that time has been extended
under subsection (5), that time as so extended.
Rule if person is charged with an offence relying on
evidence obtained under the warrant
(3) If:
(a) a person is charged with an
offence; and
(b) the prosecution proposes to rely
on evidence obtained under the warrant;
the notice (and the copy of the warrant or of the form of
the warrant completed under subsection 3ZZBF(7)) must be given as soon as
practicable after the person is charged with the offence, but no later than the
earlier of the following times:
(c) the time applicable under subsection (2);
(d) the time of service of the brief
of evidence by the prosecution.
Extending the time specified in the warrant for giving
notice
(4) The chief officer of the authorised
agency may, in writing, authorise an eligible officer of the agency to apply to
an eligible issuing officer for an extension of the time specified under
paragraph 3ZZBE(1)(i) by which notice of entry of premises under a delayed
notification search warrant is to be given.
(5) An eligible issuing officer may, on
application by an eligible officer authorised under subsection (4), extend
the time specified under paragraph 3ZZBE(1)(i) by which notice of entry of
premises under a delayed notification search warrant is to be given if the
eligible issuing officer is satisfied that there are reasonable grounds for
continuing to delay notice of entry of the premises.
(6) An eligible issuing officer may, under subsection (5),
extend the time specified under paragraph 3ZZBE(1)(i) on more than one
occasion, but:
(a) must not extend the time by more
than 6 months on any one occasion; and
(b) must not extend the time to more
than 12 months after the day on which the
delayed notification search warrant was issued unless:
(i) the Minister is
satisfied on reasonable grounds that there are exceptional circumstances
justifying the extension, and that it is in the public interest to do so; and
(ii) the Minister has
issued a certificate approving the application for the extension; and
(iii) the eligible issuing
officer is satisfied that there are exceptional circumstances justifying such
an extension.
(7) A certificate issued under subsection (6)
is not a legislative instrument.
Division 5—Using, sharing and returning things seized
Subdivision A—Using and sharing things seized
3ZZEA
Purposes for which things may be used and shared
Use and sharing of thing by eligible officer or
Commonwealth officer
(1) An eligible officer of an eligible agency
or a Commonwealth officer may use, or make available to another eligible
officer or Commonwealth officer to use, a thing seized under this Part for the
purpose of any or all of the following if it is necessary to do so for that
purpose:
(a) preventing, investigating or
prosecuting an offence;
(b) proceedings under the Proceeds
of Crime Act 1987 or the Proceeds of Crime Act 2002;
(c) proceedings for the forfeiture of
the thing under a law of the Commonwealth;
(d) the performance of a function or
duty, or the exercise of a power, by a person, court or other body under, or in
relation to a matter arising under, Division 104 or 105 of the Criminal
Code;
(e) investigating or resolving a
complaint or an allegation of misconduct relating to an exercise of a power or
the performance of a function or duty under this Part;
(f) investigating or resolving an AFP
conduct or practices issue (within the meaning of the Australian Federal
Police Act 1979) under Part V of that Act;
(g) investigating or resolving a
complaint under the Ombudsman Act 1976 or the Privacy Act 1988;
(h) investigating or inquiring into a
corruption issue under the Law Enforcement Integrity Commissioner Act 2006;
(i) proceedings in relation to a
complaint, allegation or issue mentioned in paragraph (e), (f), (g) or
(h);
(j) deciding whether to institute
proceedings, to make an application or request, or to take any other action,
mentioned in any of the preceding paragraphs of this subsection;
(k) the performance of the functions
of the Australian Federal Police under section 8 of the Australian
Federal Police Act 1979.
(2) An eligible officer of an eligible agency
or a Commonwealth officer may use a thing seized under this Part for any other
use that is required or authorised by or under a law of a State or a Territory.
(3) An eligible officer of an eligible agency
may make available to another eligible officer of an eligible agency or a
Commonwealth officer to use a thing seized under this Part for any purpose for
which the making available of the thing or document is required or authorised
by a law of a State or Territory.
(4) To avoid doubt, this section does not
limit any other law of the Commonwealth that:
(a) requires or authorises the use of
a thing; or
(b) requires or authorises the making
available (however described) of a thing.
Sharing thing for use by State, Territory or foreign
agency
(5) An eligible officer of an eligible agency
or a Commonwealth officer may make a thing seized under this Part available to:
(a) a State or Territory law
enforcement agency; or
(b) an agency that has responsibility
for:
(i) law enforcement in a
foreign country; or
(ii) intelligence gathering
for a foreign country; or
(iii) the security of a
foreign country;
to be used by that agency for a purpose mentioned in subsection (1),
(2) or (3) and the purpose of any or all of the following (but not for any
other purpose):
(c) preventing, investigating or
prosecuting an offence against a law of a State or Territory;
(d) proceedings under a corresponding
law (within the meaning of the Proceeds of Crime Act 1987 or the Proceeds
of Crime Act 2002);
(e) proceedings for the forfeiture of
the thing under a law of a State or Territory;
(f) deciding whether to institute
proceedings or to take any other action mentioned in any of paragraphs (1)(a)
to (k) (inclusive), subsection (2) or (3) or paragraph (c), (d) or
(e) of this subsection.
Ministerial arrangements for sharing
(6) This Division does not prevent the
Minister from making an arrangement with a Minister of a State or Territory
for:
(a) the making available to a State or
Territory law enforcement agency of that State or Territory, for purposes
mentioned in subsections (1), (3) and (5), of things seized under this
Part; and
(b) the disposal by the agency of such
things when they are no longer of use to that agency for those purposes.
Note: This subsection does not empower the Minister
to make such an arrangement.
Subdivision B—Returning things seized
3ZZEB
When things seized must be returned
(1) If the chief officer of the relevant
eligible agency is satisfied that a thing seized under this Part is not
required (or is no longer required) for a purpose mentioned in section 3ZZEA
or for other judicial or administrative review proceedings, the chief officer
must take reasonable steps to return the thing to the person from whom it was
seized, or to the owner if that person is not entitled to possess it.
(2) However, the chief officer does not have
to take those steps if:
(a) either:
(i) the thing may be
retained because of an order under subsection 3ZZEC(1), or any other order
under that subsection has been made in relation to the thing; or
(ii) the chief officer has
applied for such an order and the application has not been determined; or
(b) the thing may otherwise be
retained, destroyed or disposed of under a law, or an order of a court or
tribunal, of the Commonwealth or of a State or a Territory; or
(c) the thing is forfeited or forfeitable
to the Commonwealth or is the subject of a dispute as to ownership; or
(d) a warrant premises occupier’s
notice has not been given in relation to the occupier of the warrant premises.
3ZZEC
Eligible issuing officer may permit a thing seized to be retained, forfeited
etc.
(1) An eligible issuing officer may, on
application by an eligible officer of an eligible agency, make any of the
orders referred to in subsection (2) in relation to a thing seized under
this Part if the eligible issuing officer is satisfied that there are
reasonable grounds to suspect that, if the thing is returned to the owner of
the thing, or the person from whom the thing was seized, it is likely to be
used by that person or another person in the commission of:
(a) a terrorist act or a terrorism
offence; or
(b) a serious offence (within the
meaning of Part IAA).
(2) The orders are as follows:
(a) an order that the thing may be
retained for the period specified in the order;
(b) an order that the thing is
forfeited to the Commonwealth;
(c) an order that:
(i) the thing be sold and
the proceeds given to the owner of the thing; or
(ii) the thing be sold in
some other way;
(d) an order that the thing is to be
destroyed or otherwise disposed of.
(3) If the eligible issuing officer is not
satisfied as mentioned in subsection (1), the eligible issuing officer
must order that the thing be returned to:
(a) the person from whom the thing was
seized; or
(b) if that person is not entitled to
possess the thing—the owner of the thing.
Division 6—Reporting and record‑keeping
3ZZFA
Reporting on delayed notification search warrants
(1) The executing officer in relation to a
delayed notification search warrant, or the applicant for the warrant, must
give a written report on the warrant to the chief officer of the authorised
agency.
(2) The report must be given to the chief
officer of the authorised agency as soon as practicable after:
(a) the day of execution of the
warrant; or
(b) if the warrant was not executed—the
expiry of the warrant.
(3) The report must:
(a) specify the address, location or
other description of the warrant premises; and
(b) state whether or not the warrant
was executed; and
(c) state whether the application for
the warrant was made in person or in accordance with section 3ZZBF.
(4) If the warrant was executed, the report
must also include the following information:
(a) the day of execution of the
warrant;
(b) the name of the executing officer;
(c) the name of any persons assisting
and the kind of assistance provided;
(d) the name of the occupier of the
warrant premises, if known to the executing officer;
(e) whether adjoining premises were
entered under the warrant and, if they were, the name of the occupier of the
adjoining premises, if known to the executing officer;
(f) the things that were done under
the warrant;
(g) without limiting paragraph (f)—details
of any thing at the warrant premises:
(i) seized; or
(ii) replaced with a
substitute; or
(iii) copied, photographed
or otherwise recorded; or
(iv) marked or tagged; or
(v) operated, printed,
tested or sampled;
(h) whether or not the execution of
the warrant assisted in the prevention or investigation of an eligible offence;
(i) details of compliance with any
conditions to which the warrant was subject;
(j) details of any warrant premises
occupier’s notice given in relation to the warrant;
(k) details of any adjoining premises
occupier’s notice given in relation to the warrant;
(l) details of any directions given
under subsection 3ZZDA(4) or 3ZZDB(4) in relation to the warrant.
(5) To avoid doubt, if, at the time a report
was given, the details in any of paragraphs (4)(j), (k) and (l) were not
included because notice or directions had not been given at that time, but are
given later, the person who gave the original report under subsection (1)
must give a further report under that subsection including those details.
(6) If the warrant was not executed, the
report must state the reason why it was not executed.
(7) If the warrant premises were entered
after the warrant was executed for the purpose of returning a thing to, or
retrieving a thing left at, the premises, a written report in relation to that
entry must be provided to the chief officer of the authorised agency. The
report must include the following information:
(a) the address, location or other
description of the warrant premises;
(b) the date on which the warrant
premises were entered for that purpose;
(c) the name of each person who so
entered the warrant premises;
(d) details of the thing returned or
retrieved;
(e) if the thing was not returned or
retrieved—the reason why the thing was not returned or removed.
(8) A report under subsection (7) must
be given as soon as practicable after the warrant premises were entered as
mentioned in that subsection.
(9) A report under this section is not a
legislative instrument.
3ZZFB Annual reports to
Minister
(1) The chief officer of an eligible agency
must give a written report to the Minister that includes the following
information in respect of each financial year:
(a) the number of applications for
delayed notification search warrants made in person by eligible officers of the
agency;
(b) the number of applications for
delayed notification search warrants made under section 3ZZBF by eligible
officers of the agency;
(c) the number of delayed notification
search warrants issued as a result of applications referred to in paragraphs (a)
and (b) and the eligible offences to which they related;
(d) the number of delayed notification
search warrants that were executed by an eligible officer of the agency;
(e) the number of delayed notification
search warrants that were executed by an eligible officer of the agency under
which:
(i) one or more things
were seized from the warrant premises; or
(ii) one or more things
were placed in substitution at the warrant premises for a seized thing; or
(iii) one or more things
were returned to, or retrieved from, the warrant premises; or
(iv) one or more things were
copied, photographed, recorded, marked, tagged, operated, printed, tested or
sampled at the warrant premises;
(f) any other information relating to
delayed notification search warrants and the administration of this Part that
the Minister considers appropriate.
(2) The report for a financial year must be
given to the Minister as soon as practicable, and in any event not more than 3
months, after the end of the financial year.
(3) The Minister must cause a copy of the
report to be laid before each House of the Parliament within 15 sitting days of
that House after the Minister receives it.
3ZZFC
Regular reports to Ombudsman
As soon as practicable after each 6‑month
period starting on 1 January or 1 July the chief officer of an
eligible agency must give a written report to the Ombudsman that includes the
following information in respect of the period:
(a) the number of applications for
delayed notification search warrants made in person by eligible officers of the
agency;
(b) the number of applications for
delayed notification search warrants made under section 3ZZBF by eligible
officers of the agency;
(c) the number of delayed notification
search warrants issued as a result of applications referred to in paragraphs (a)
and (b) and the eligible offences to which they related;
(d) the number of delayed notification
search warrants that were executed by an eligible officer of the agency.
3ZZFD
Keeping documents connected with delayed notification search warrants
The chief officer of an eligible agency
must cause the following to be kept:
(a) a copy of each authorisation given
in writing by the chief officer under section 3ZZBB;
(b) a copy of the written record made
under section 3ZZBB of each authorisation given orally by the chief
officer under that section;
(c) a copy of each application for a
delayed notification search warrant made by an eligible officer of the agency,
and a statement of whether the application was granted or refused;
(d) each delayed notification search
warrant issued to an eligible officer of the agency;
(e) a copy of each form of delayed
notification search warrant completed under subsection 3ZZBF(7) by an
eligible officer of the agency;
(f) a copy of the following:
(i) each warrant premises
occupier’s notice given in relation to a delayed notification search warrant
issued to an eligible officer of the agency;
(ii) each adjoining
premises occupier’s notice given in relation to such a warrant;
(iii) each application made
by an eligible officer of the agency under section 3ZZCC;
(iv) any directions given
under subsection 3ZZDA(4) or 3ZZDB(4) in relation to such a warrant;
(v) each authorisation
given by the chief officer of the agency under subsection 3ZZDC(4);
(vi) each application made
by an eligible officer of the agency as mentioned in subsection 3ZZDC(5);
(vii) each extension of time
granted under subsection 3ZZDC(5) in response to such an application;
(g) each report given to the chief
officer of the agency under section 3ZZFA.
3ZZFE
Register of delayed notification search warrants
(1) The chief officer of an eligible agency
must cause a register of delayed notification search warrants to be kept.
(2) The register is to specify, for each
delayed notification search warrant sought by an eligible officer of the
eligible agency:
(a) the date the warrant was issued or
refused; and
(b) the name of the eligible issuing
officer who issued or refused to issue the warrant; and
(c) if the warrant was issued:
(i) the name of the
applicant for the warrant and the executing officer; and
(ii) the eligible offence
to which the warrant relates; and
(iii) if the warrant was
executed—the day of execution of the warrant; and
(iv) the day and time of
issue of the warrant, and the time of expiry of the warrant; and
(v) the time by which
notice of entry of premises under the warrant is to be given; and
(vi) whether a warrant
premises occupier’s notice has been given in relation to the warrant and, if
such a notice has been given, the date on which it was given; and
(vii) whether an adjoining
premises occupier’s notice has been given in relation to the warrant and, if
such a notice has been given, the date on which it was given; and
(viii) details of any
extension of time granted under subsection 3ZZDC(5) in relation to the
warrant; and
(ix) details of any
directions given under subsection 3ZZDA(4) or 3ZZDB(4) in relation to the
warrant.
(3) The register is not a legislative
instrument.
Division 7—Inspections by Ombudsman
3ZZGA
Appointment of inspecting officers
(1) The Ombudsman may appoint members of the
Ombudsman’s staff to be inspecting officers for the purposes of this Division.
(2) An appointment under subsection (1)
must be in writing.
3ZZGB
Inspection of records by the Ombudsman
(1) The Ombudsman must, from time to time and
at least once in each 6‑month period starting on 1 January or 1 July,
inspect the records of each eligible agency to determine the extent of
compliance with this Part by the agency, and eligible officers of the agency,
in relation to delayed notification search warrants.
(2) For the purpose of an inspection under
this section, the Ombudsman:
(a) may, after notifying the chief
officer of the eligible agency, enter at any reasonable time premises occupied
by the agency; and
(b) is entitled to have full and free
access at all reasonable times to all records of the agency that are relevant
to the inspection; and
(c) may require a staff member of the
agency to give the Ombudsman any information that the Ombudsman considers
necessary, being information that is in the member’s possession, or to which
the member has access, and that is relevant to the inspection.
(3) The chief officer must ensure that staff
members of the agency give the Ombudsman any assistance the Ombudsman
reasonably requires to enable the Ombudsman to perform functions under this
section.
(4) Nothing in this section requires the
Ombudsman to inspect records that are relevant to the obtaining or execution of
a delayed notification search warrant if a warrant premises occupier’s notice
has not yet been given in relation to the warrant, unless directions have been
made under subsection 3ZZDA(4) or 3ZZDB(4) not requiring such notice to be
given.
3ZZGC
Power to obtain relevant information
(1) If the Ombudsman has reasonable grounds
to believe that a staff member of an eligible agency is able to give
information relevant to an inspection under this Division of the agency’s
records, subsections (2) and (3) have effect.
(2) The Ombudsman may, by writing given to
the staff member, require the staff member to give the information to the
Ombudsman:
(a) by writing signed by the staff
member; and
(b) at a specified place and within a
specified period.
(3) The Ombudsman may, by writing given to
the staff member, require the staff member to attend:
(a) before a specified inspecting
officer; and
(b) at a specified place; and
(c) within a specified period or at a
specified time on a specified day;
to answer questions relevant to the inspection.
(4) If the Ombudsman:
(a) has reasonable grounds to believe
that a staff member of an eligible agency is able to give information relevant
to an inspection under this Division of the agency’s records; and
(b) does not know the staff member’s
identity;
the Ombudsman may, by writing given to the chief officer
of the agency, require the chief officer, or a person nominated by the chief
officer, to attend:
(c) before a specified inspecting
officer; and
(d) at a specified place; and
(e) within a specified period or at a
specified time on a specified day;
to answer questions relevant to the inspection.
(5) The place, and the period or the time and
day, specified in a requirement under this section, must be reasonable having
regard to the circumstances in which the requirement is made.
3ZZGD
Offence
A person commits an offence if:
(a) the person is required under
section 3ZZGC to attend before another person, to give information or to
answer questions; and
(b) the person refuses or fails to do
so.
Penalty: Imprisonment for 6 months.
3ZZGE
Ombudsman to be given information etc. despite other laws
(1) Despite any other law, a person is not
excused from giving information, answering a question, or giving access to a
document, as and when required under this Division, on the ground that giving
the information, answering the question, or giving access to the document, as
the case may be:
(a) would contravene a law; or
(b) would be contrary to the public
interest; or
(c) might tend to incriminate the
person or make the person liable to a penalty; or
(d) would disclose one of the
following:
(i) a legal advice given
to a Minister or a Department, or a prescribed authority (within the meaning of
the Ombudsman Act 1976);
(ii) a communication
between an officer of a Department or of a prescribed authority (within the
meaning of the Ombudsman Act 1976) and another person or body, being a
communication protected against disclosure by legal professional privilege.
(2) However, if the person is a natural
person:
(a) the information, the answer, or
the fact that the person has given access to the document, as the case may be;
and
(b) any information or thing
(including a document) obtained as a direct or indirect consequence of giving
the information, answering the question or giving access to the document;
are not admissible in evidence against the person except
in a proceeding by way of a prosecution for an offence against section 3ZZHA
or against Part 7.4 or 7.7 of the Criminal Code.
(3) Nothing in section 3ZZHA or any
other law prevents a staff member of an eligible agency from:
(a) giving information to the
Ombudsman or an inspecting officer (whether orally or in writing and whether or
not in answer to a question); or
(b) giving access to a record of the
agency to the Ombudsman or an inspecting officer;
for the purposes of an inspection under this Division of
the agency’s records.
(4) Nothing in section 3ZZHA or any
other law prevents a staff member of an eligible agency from making a record of
information, or causing a record of information to be made, for the purposes of
giving the information to a person as permitted by subsection (3).
(5) The fact that a person is not excused
under subsection (1) from giving information, answering a question or
producing a document does not otherwise affect a claim of legal professional
privilege that anyone may make in relation to that information, answer or
document.
3ZZGF
Exchange of information between Ombudsman and State or Territory inspecting
authorities
(1) The Ombudsman may give information that:
(a) relates to a State or Territory
agency; and
(b) was obtained by the Ombudsman
under this Division;
to the State or Territory inspecting authority in relation
to the agency.
(2) The Ombudsman may only give information
to an authority under subsection (1) if the Ombudsman is satisfied that
the giving of the information is necessary to enable the authority to perform
its functions in relation to the State or Territory agency.
(3) The Ombudsman may receive from a State or
Territory inspecting authority information relevant to the performance of the
Ombudsman’s functions under this Division.
(4) In this section:
State or Territory agency means the police
force or police service of a State or Territory.
State or Territory inspecting authority, in
relation to a State or Territory agency, means the authority that, under the
law of the State or Territory concerned, has the function of making inspections
of a similar kind to those provided for in section 3ZZGB.
3ZZGG
Ombudsman not to be sued
(1) The Ombudsman, an inspecting officer, or
a person acting under an inspecting officer’s direction or authority, is not
liable to an action, suit or proceeding for or in relation to an act done, or
omitted to be done, in good faith in the performance or exercise, or the
purported performance or exercise, of a function or power conferred by this
Division.
(2) A reference in this section to the
Ombudsman includes a reference to a Deputy Ombudsman or a delegate of the
Ombudsman.
3ZZGH
Report on inspection
(1) As soon as practicable after each 6‑month
period starting on 1 January or 1 July the Ombudsman must give a
written report to the Minister on the results of each inspection under section 3ZZGB
in the period.
(2) If, having regard to information obtained
in the course of the inspection or a previous inspection, the Ombudsman
considers that the requirements of section 3ZZFB or 3ZZFC have not been
properly complied with in relation to an eligible agency, the Ombudsman may
include a comment to that effect in the report.
(3) The Minister must cause a copy of the
report to be laid before each House of the Parliament within 15 sitting days of
that House after the Minister receives it.
Division 8—Unauthorised disclosure of information
3ZZHA
Unauthorised disclosure of information
(1) A person commits an offence if:
(a) the person discloses information;
and
(b) the information relates to:
(i) an application for a
delayed notification search warrant; or
(ii) the execution of a
delayed notification search warrant; or
(iii) a report under section 3ZZFA
in relation to a delayed notification search warrant; or
(iv) a warrant premises
occupier’s notice or an adjoining premises occupier’s notice prepared in
relation to a delayed notification search warrant.
Penalty: Imprisonment for 2 years.
(2) Each of the following is an exception to
the offence created by subsection (1):
(a) the disclosure is in connection
with the administration or execution of this Part;
(aa) the disclosure is for the purposes
of obtaining or providing legal advice related to this Part;
(b) the disclosure is for the purposes
of any legal proceeding arising out of or otherwise related to this Part or of
any report of any such proceedings;
(c) the disclosure is in accordance
with any requirement imposed by law;
(d) the disclosure is for the purposes
of:
(i) the performance of
duties or functions or the exercise of powers under or in relation to this
Part; or
(ii) the performance of
duties or functions or the exercise of powers by a law enforcement officer, an
officer of the Australian Security Intelligence Organisation, a staff member of
the Australian Secret Intelligence Service or a person seconded to either of
those bodies;
(da) the disclosure is made by anyone to
the Ombudsman, a Deputy Commonwealth Ombudsman or a member of the Ombudsman’s
staff (whether in connection with the exercise of powers or performance of functions
under Division 7, in connection with a complaint made to the Ombudsman or
in any other circumstances);
(e) the disclosure is made after a
warrant premises occupier’s notice or an adjoining premises occupier’s notice
has been given in relation to the warrant;
(f) the disclosure is made after a
direction has been given under subsection 3ZZDA(4) or 3ZZDB(4) in relation
to the warrant.
Note: A defendant bears an evidential burden in
relation to a matter in subsection (2)—see subsection 13.3(3) of the Criminal
Code.
Division 9—Other matters
3ZZIA
Delegation
Delegation by chief officer
(1) The chief officer of an authorised agency
or eligible agency may, in writing, delegate all or any of the chief officer’s
powers, functions or duties under this Part to:
(a) a Deputy Commissioner of the
Australian Federal Police; or
(b) a senior executive AFP employee
who is a member of the Australian Federal Police and who is authorised in
writing by the Commissioner for the purposes of this paragraph.
(2) The chief officer of an authorised agency
or eligible agency may, in writing, delegate all or any of the chief officer’s
powers, functions or duties under Division 5 to the chief executive
officer (however described) of a State or Territory law enforcement agency.
(3) The chief officer of an authorised agency
or eligible agency may, in writing, delegate all or any of the chief officer’s
powers, functions or duties under Division 5 to a Commonwealth officer if
the chief officer is satisfied on reasonable grounds that the Commonwealth
officer is able to properly exercise those powers, functions or duties.
Delegation by Ombudsman
(4) The Ombudsman may, in writing, delegate all
or any of the Ombudsman’s powers under this Part, other than a power to report
to the Minister, to an APS employee responsible to the Ombudsman.
Delegate must produce delegation on request
(5) A delegate must, upon request by a person
affected by the exercise of any power delegated to the delegate, produce the
instrument of delegation, or a copy of the instrument, for inspection by the
person.
3ZZIB
Law relating to legal professional privilege not affected
Except as expressly provided, this Part
does not affect the law relating to legal professional privilege.
Note: Section 3ZZGE expressly overrides legal
professional privilege.
52 Paragraphs 15AA(2)(c) and (d)
After “provision of”, insert “Subdivision C of”.
53 After paragraph 15YU(1)(f)
Insert:
(fa) an offence against Part 5.5
of the Criminal Code; or
54 Paragraph 15YU(1)(j)
Repeal the paragraph.
55 Application of amendments
Despite the repeal of paragraph 15YU(1)(j) of the Crimes
Act 1914 by this Schedule, that paragraph continues to apply after this
item commences in relation to any proceedings for an offence against the Crimes
(Foreign Incursions and Recruitment) Act 1978 (whether those proceedings
commence before, on or after the commencement of this item).
56 Subsection 23DB(1) (note)
Omit “3W(2)”, substitute “3WA(2)”.
Criminal Code Act 1995
57 Part 5.1 of the Criminal Code (heading)
Repeal the heading, substitute:
Part 5.1—Treason, urging violence and advocating terrorism
58 Division 80 of the Criminal Code (heading)
Repeal the heading, substitute:
Division 80—Treason, urging violence and advocating terrorism
59 Subsection 80.1AA(6) of the Criminal Code
After “conduct”, insert “solely”.
60 Subdivision C of Division 80 of the Criminal Code
(heading)
Repeal the heading, substitute:
Subdivision C—Urging violence and advocating terrorism
61 At the end of Subdivision C of Division 80 of the Criminal
Code
Add:
80.2C
Advocating terrorism
(1) A person commits an offence if:
(a) the person advocates:
(i) the doing of a
terrorist act; or
(ii) the commission of a
terrorism offence referred to in subsection (2); and
(b) the person engages in that conduct
reckless as to whether another person will:
(i) engage in a terrorist
act; or
(ii) commit a terrorism
offence referred to in subsection (2).
Note: There is a defence in section 80.3 for
acts done in good faith.
Penalty: Imprisonment for 5 years.
(2) A terrorism offence is referred to in
this subsection if:
(a) the offence is punishable on
conviction by imprisonment for 5 years or more; and
(b) the offence is not:
(i) an offence against
section 11.1 (attempt), 11.4 (incitement) or 11.5 (conspiracy) to the
extent that it relates to a terrorism offence; or
(ii) a terrorism offence
that a person is taken to have committed because of section 11.2
(complicity and common purpose), 11.2A (joint commission) or 11.3 (commission
by proxy).
Definitions
(3) In this section:
advocates: a person advocates the
doing of a terrorist act or the commission of a terrorism offence if the person
counsels, promotes, encourages or urges the doing of a terrorist act or the
commission of a terrorism offence.
terrorism offence has the same meaning as in
subsection 3(1) of the Crimes Act 1914.
terrorist act has the same meaning as in
section 100.1.
(4) A reference in this section to advocating
the doing of a terrorist act or the commission of a terrorism offence
includes a reference to:
(a) advocating the doing of a
terrorist act or the commission of a terrorism offence, even if a terrorist act
or terrorism offence does not occur; and
(b) advocating the doing of a specific
terrorist act or the commission of a specific terrorism offence; and
(c) advocating the doing of more than
one terrorist act or the commission of more than one terrorism offence.
62 Subsection 80.4(2) of the Criminal Code
Omit “or 80.2B(2)”, substitute “, 80.2B(2) or 80.2C(1)”.
62A Subsection 100.1(1) of the Criminal Code
Insert:
engage in a hostile activity has the meaning
given by subsection 117.1(1).
63 Subsection 102.1(1) of the Criminal Code (paragraph (a)
of the definition of terrorist organisation)
Omit “(whether or not a terrorist act occurs)”.
64 Paragraph 102.1(1A)(a) of the Criminal Code
After “counsels”, insert “, promotes, encourages”.
65 Subsections 102.1(2), (4) and (17) of the Criminal
Code
Omit “(whether or not a terrorist act has occurred or will occur)”
(wherever occurring).
66 At the end of section 102.1 of the Criminal Code
Add:
(20) In this section, a reference to the doing
of a terrorist act includes:
(a) a reference to the doing of a
terrorist act, even if a terrorist act does not occur; and
(b) a reference to the doing of a
specific terrorist act; and
(c) a reference to the doing of more
than one terrorist act.
67 After section 102.1 of the Criminal Code
Insert:
102.1AA
Including or removing names of prescribed terrorist organisations
(1) This section applies if the Minister is
satisfied on reasonable grounds that:
(a) an organisation is specified in
regulations made for the purposes of paragraph (b) of the definition of terrorist
organisation in subsection 102.1(1); and
(b) the organisation:
(i) is referred to by
another name (the alias), in addition to, or instead of, a name used
to specify the organisation in the regulations; or
(ii) no longer uses a name (the
former name) used in the regulations to specify the organisation.
(2) The Minister may, by legislative
instrument, amend the regulations to do either or both of the following:
(a) include the alias in the
regulations if the Minister is satisfied as referred to in subparagraph (1)(b)(i);
(b) remove the former name from the
regulations if the Minister is satisfied as referred to in subparagraph (1)(b)(ii).
(3) Amendment of regulations under subsection (2)
does not:
(a) prevent the further amendment or
repeal of the regulations by regulations made under section 5 of this Act
for the purposes of paragraph (b) of the definition of terrorist
organisation in subsection 102.1(1); or
(b) affect when the amended
regulations cease to have effect under section 102.1.
(4) The Minister may not, by legislative
instrument made under this section, amend the regulations to remove entirely an
organisation that has been prescribed.
(5) To avoid doubt, this section does not
affect the power under section 5 of this Act to make regulations for the
purposes of paragraph (b) of the definition of terrorist
organisation in subsection 102.1(1).
68 Section 102.5 of the Criminal Code (heading)
Repeal the heading, substitute:
102.5
Training involving a terrorist organisation
69 Paragraphs 102.5(1)(a) and 102.5(2)(a) of the Criminal
Code
Repeal the paragraphs, substitute:
(a) the person does any of the
following:
(i) intentionally provides
training to an organisation;
(ii) intentionally receives
training from an organisation;
(iii) intentionally
participates in training with an organisation; and
70 Paragraph 104.2(2)(a) of the Criminal Code
Omit “considers”, substitute “suspects”.
71 Paragraph 104.2(2)(b) of the Criminal Code
Repeal the paragraph, substitute:
(b) suspects on reasonable grounds
that the person has:
(i) provided training to, received
training from or participated in training with a listed terrorist organisation;
or
(ii) engaged in a hostile
activity in a foreign country; or
(iii) been convicted in
Australia of an offence relating to terrorism, a terrorist organisation (within
the meaning of subsection 102.1(1)) or a terrorist act (within the meaning
of section 100.1); or
(iv) been convicted in a
foreign country of an offence that is constituted by conduct that, if engaged
in in Australia, would constitute a terrorism offence (within the meaning of
subsection 3(1) of the Crimes Act 1914).
72 At the end of section 104.2 of the Criminal Code
Add:
(6) In paragraphs (2)(a) and (b), a
reference to a terrorist act includes:
(a) a reference to a terrorist act that
does not occur; and
(b) a reference to a specific
terrorist act; and
(c) a reference to more than one
terrorist act.
73 Subparagraph 104.4(1)(c)(ii) of the Criminal Code
Repeal the subparagraph, substitute:
(ii) that the person has
provided training to, received training from or participated in training with a
listed terrorist organisation; or
(iii) that the person has engaged
in a hostile activity in a foreign country; or
(iv) that the person has
been convicted in Australia of an offence relating to terrorism, a terrorist
organisation (within the meaning of subsection 102.1(1)) or a terrorist
act (within the meaning of section 100.1); or
(v) that the person has
been convicted in a foreign country of an offence that is constituted by
conduct that, if engaged in in Australia, would constitute a terrorism offence
(within the meaning of subsection 3(1) of the Crimes Act 1914); and
74 At the end of section 104.4 of the Criminal Code
Add:
(4) In paragraphs (1)(c) and (d), a
reference to a terrorist act includes:
(a) a reference to a terrorist act
that does not occur; and
(b) a reference to a specific
terrorist act; and
(c) a reference to more than one
terrorist act.
75 At the end of paragraph 104.5(3)(c) of the Criminal
Code
Add “, but for no more than 12 hours within any 24 hours”.
76 Paragraphs 104.6(1)(b) and 104.8(1)(b) of the Criminal
Code
Omit “either considers or”.
77 Subparagraph 104.12(1)(b)(iii) of the Criminal Code
Omit “appropriate); and”, substitute “appropriate);”.
78 At the end of paragraph 104.12(1)(b) of the Criminal
Code
Add:
(iv) that the person may
have appeal and review rights in relation to the decision of the issuing court
to make the order;
(v) the person’s right to
attend court on the day specified for the purposes of paragraph 104.5(1)(e);
(vi) the right of the person
or one or more representatives of the person, and (if relevant) the right of
the Queensland public interest monitor, to adduce evidence or make submissions
under subsection 104.14(1) if the order is confirmed;
(vii) that the person may
have appeal and review rights in relation to any decision of the issuing court
to confirm the order;
(viii) the person’s right to
apply under section 104.18 for an order revoking or varying the order if
it is confirmed;
(ix) the right of the person
or one or more representatives of the person, and (if relevant) the right of
the Queensland public interest monitor, to adduce evidence or make submissions
under subsection 104.19(3) or 104.23(4) in relation to an application to
revoke or vary the order if it is confirmed; and
79 Section 104.17 of the Criminal Code
Before “As soon as practicable”, insert “(1)”.
80 Section 104.17 of the Criminal Code
Omit all the words after “section 104.14,”, substitute:
an AFP member must:
(a) serve the declaration, the
revocation or the confirmed control order personally on the person; and
(b) if the court confirms the interim
order (with or without variation)—inform the person of the following:
(i) that the person may
have appeal and review rights in relation to the decision of the issuing court
to confirm the order;
(ii) the person’s right to
apply under section 104.18 for an order revoking or varying the order;
(iii) the right of the
person or one or more representatives of the person, and (if relevant) the
right of the Queensland public interest monitor, to adduce evidence or make
submissions under subsection 104.19(3) or 104.23(4) in relation to an
application to revoke or vary the order; and
(c) if paragraph (b)
applies—ensure that the person understands the information provided under that paragraph (taking
into account the person’s age, language skills, mental capacity and any other
relevant factor).
81 At the end of section 104.17 of the Criminal Code
Add:
(2) Paragraphs (1)(b) and (c) do not
apply if the actions of the person in relation to whom the interim control
order has been declared void, revoked or confirmed make it impracticable for
the AFP member to comply with those paragraphs.
(3) A failure to comply with paragraph (1)(c)
does not make the control order ineffective to any extent.
81A Subsection 104.23(1) of the Criminal Code
Repeal the subsection, substitute:
(1) The Commissioner of the Australian
Federal Police may cause an application to be made to an issuing court to vary,
under section 104.24, a confirmed control order, by adding one or more
obligations, prohibitions or restrictions mentioned in subsection 104.5(3)
to the order, if the Commissioner:
(a) suspects on reasonable grounds
that the varied order in the terms to be sought would substantially assist in
preventing a terrorist act; or
(b) suspects on reasonable grounds
that the person has:
(i) provided training to,
received training from or participated in training with a listed terrorist
organisation; or
(ii) engaged in a hostile
activity in a foreign country; or
(iii) been convicted in
Australia of an offence relating to terrorism, a terrorist organisation (within
the meaning of subsection 102.1(1)) or a terrorist act (within the meaning
of section 100.1); or
(iv) been convicted in a
foreign country of an offence that is constituted by conduct that, if engaged
in in Australia, would constitute a terrorism offence (within the meaning of
subsection 3(1) of the Crimes Act 1914).
82 At the end of section 104.23 of the Criminal Code
Add:
(6) In subsection (1), a reference to a
terrorist act includes:
(a) a reference to a terrorist act
that does not occur; and
(b) a reference to a specific
terrorist act; and
(c) a reference to more than one
terrorist act.
83 At the end of section 104.24 of the Criminal Code
Add:
(4) In paragraph (1)(b), a reference to
a terrorist act includes:
(a) a reference to a terrorist act
that does not occur; and
(b) a reference to a specific
terrorist act; and
(c) a reference to more than one
terrorist act.
84 Subparagraph 104.26(1)(c)(ii) of the Criminal Code
Omit “appropriate); and”, substitute “appropriate);”.
85 At the end of paragraph 104.26(1)(c) of the Criminal
Code
Add:
(iii) that the person may
have appeal and review rights in relation to the decision of the issuing court
to vary the order;
(iv) the person’s right to
apply under section 104.18 for an order revoking or varying the order;
(v) the right of the person
or one or more representatives of the person, and (if relevant) the right of
the Queensland public interest monitor, to adduce evidence or make submissions
under subsection 104.19(3) or 104.23(4) in relation to an application to
revoke or vary the order; and
86 Subsection 104.32(1) of the Criminal Code
Omit “10 years after the day on which this Division commences”,
substitute “7 September 2018”.
87 Subsection 104.32(2) of the Criminal Code
Omit “the end of 10 years after the day on which this Division
commences”, substitute “7 September 2018”.
88 Subsection 105.4(4) of the Criminal Code
Repeal the subsection, substitute:
(4) A person meets the requirements of this
subsection if:
(a) in the case of an AFP member—the
member suspects, on reasonable grounds, that the subject:
(i) will engage in a
terrorist act; or
(ii) possesses a thing that
is connected with the preparation for, or the engagement of a person in, a
terrorist act; or
(iii) has done an act in
preparation for, or planning, a terrorist act; and
(b) in the case of an issuing
authority—the issuing authority is satisfied there are reasonable grounds to
suspect that the subject:
(i) will engage in a
terrorist act; or
(ii) possesses a thing that
is connected with the preparation for, or the engagement of a person in, a
terrorist act; or
(iii) has done an act in
preparation for, or planning, a terrorist act; and
(c) the person is satisfied that
making the order would substantially assist in preventing a terrorist act
occurring; and
(d) the person is satisfied that
detaining the subject for the period for which the person is to be detained
under the order is reasonably necessary for the purpose referred to in paragraph (c).
89 Paragraph 105.4(6)(b) of the Criminal Code
Before “necessary”, insert “reasonably”.
90 Paragraph 105.7(2)(a) of the Criminal Code
Repeal the paragraph, substitute:
(a) be made either:
(i) in writing (other than
writing by means of an electronic communication); or
(ii) if the AFP member
considers it necessary because of urgent circumstances—orally in person or by
telephone, or by fax, email or other electronic means of communication; and
91 After subsection 105.7(2A) of the Criminal Code
Insert:
(2B) If the application is made orally,
information given by the AFP member to the issuing authority in connection with
the application must be verified or given on oath or affirmation, unless the
issuing authority is satisfied that it is not practical to administer an oath
or affirmation to the member.
92 Subsection 105.8(1) of the Criminal Code
After “authority may”, insert “, subject to subsection (1A),”.
93 After subsection 105.8(1) of the Criminal Code
Insert:
(1A) If the application is made orally in person
or by telephone, or by fax, email or other electronic means of communication,
the issuing authority must not make the order unless the issuing authority is
satisfied that it is necessary, because of urgent circumstances, to apply for
the order by such means.
94 Paragraph 105.8(6)(a) of the Criminal Code
Repeal the paragraph, substitute:
(a) any of the following:
(i) the true name of the
person in relation to whom the order is made;
(ii) if, after reasonable
inquiries have been made, the person’s true name is not known but an alias is
known for the person—the alias of the person in relation to whom the order is
made;
(iii) if, after reasonable
inquiries have been made, the person’s true name is not known and no alias is
known for the person—a description sufficient to identify the person in
relation to whom the order is made; and
95 After subsection 105.8(7) of the Criminal Code
Insert:
(7A) If the order is made on an application that
was made orally (see subparagraph 105.7(2)(a)(ii)), the issuing authority
must either:
(a) ensure that there is an audio, or
audio‑visual, recording of the application; or
(b) as soon as practicable after the
order is made, make a written record of the details of the application,
including any information given in support of it.
95A Subsection 105.8(8) of the Criminal Code
After “must”, insert “, as soon as reasonably practicable after
the order is made”.
96 Paragraph 105.12(6)(a) of the Criminal Code
Repeal the paragraph, substitute:
(a) any of the following:
(i) the true name of the
person in relation to whom the order is made;
(ii) if, after reasonable
inquiries have been made, the person’s true name is not known but an alias is
known for the person—the alias of the person in relation to whom the order is
made;
(iii) if, after reasonable
inquiries have been made, the person’s true name is not known and no alias is
known for the person—a description sufficient to identify the person in
relation to whom the order is made; and
96A Subsection 105.12(8) of the Criminal Code
After “must”, insert “, as soon as reasonably practicable after
the order is made”.
97 After subsection 105.15(1) of the Criminal Code
Insert:
(1A) The application for the prohibited contact
order may be made either:
(a) in writing (other than writing by
means of an electronic communication); or
(b) if the AFP member considers it
necessary because of urgent circumstances—orally in person or by telephone, or
by fax, email or other electronic means of communication.
98 Subsection 105.15(3) of the Criminal Code
Repeal the subsection, substitute:
(3) If:
(a) a continued preventative detention
order is being applied for; and
(b) the application for the prohibited
contact order is made in accordance with paragraph (1A)(a);
the information in the application for the prohibited
contact order must be sworn or affirmed by the AFP member.
(3A) If:
(a) a continued preventative detention
order is being applied for; and
(b) the application for the prohibited
contact order is made in accordance with paragraph (1A)(b);
the information in the application for the prohibited
contact order must be sworn or affirmed by the AFP member unless the issuing authority
is satisfied that it is not practical to administer an oath or affirmation to
the member.
99 Subsection 105.15(4) of the Criminal Code
After “authority may”, insert “, subject to subsection (4A),”.
100 After subsection 105.15(4) of the Criminal Code
Insert:
(4A) If the application for the prohibited
contact order is made orally in person or by telephone, or by fax, email or
other electronic means of communication, the issuing authority must not make
the order unless the issuing authority is satisfied that it was necessary,
because of urgent circumstances, to apply for the order by such means.
101 At the end of section 105.15 of the Criminal
Code
Add:
(7) If the prohibited contact order is made
on an application that was made orally, the issuing authority must either:
(a) ensure that there is an audio, or
audio‑visual, recording of the application; or
(b) as soon as practicable after the
order is made, make a written record of the details of the application,
including any information given in support of it.
102 After subsection 105.16(1) of the Criminal Code
Insert:
(1A) The application may be made either:
(a) in writing (other than writing by
means of an electronic communication); or
(b) if the AFP member considers it
necessary because of urgent circumstances—orally in person or by telephone, or
by fax, email or other electronic means of communication.
103 Subsection 105.16(3) of the Criminal Code
Repeal the subsection, substitute:
(3) If:
(a) the preventative detention order
is a continued preventative detention order; and
(b) the application for the prohibited
contact order is made in accordance with paragraph (1A)(a);
the information in the application for the prohibited
contact order must be sworn or affirmed by the AFP member.
(3A) If:
(a) the preventative detention order
is a continued preventative detention order; and
(b) the application for the prohibited
contact order is made in accordance with paragraph (1A)(b);
the information in the application for the prohibited contact
order must be sworn or affirmed by the AFP member unless the issuing authority
is satisfied that it is not practical to administer an oath or affirmation to
the member.
104 Subsection 105.16(4) of the Criminal Code
After “authority may”, insert “, subject to subsection (4A),”.
105 After subsection 105.16(4) of the Criminal Code
Insert:
(4A) If the application for the prohibited
contact order is made orally in person or by telephone, or by fax, email or
other electronic means of communication, the issuing authority must not make
the order unless the issuing authority is satisfied that it was necessary,
because of urgent circumstances, to apply for the order by such means.
106 At the end of section 105.16 of the Criminal
Code
Add:
(7) If the prohibited contact order is made
on an application that was made orally, the issuing authority must either:
(a) ensure there is an audio, or audio‑visual,
recording of the application; or
(b) as soon as practicable after the
order is made, make a written record of the details of the application,
including any information given in support of it.
107 Subsection 105.53(1) of the Criminal Code
Omit “10 years after the day on which this Division commences”,
substitute “7 September 2018”.
108 Subsection 105.53(2) of the Criminal Code
Omit “the end of 10 years after the day on which this Division
commences”, substitute “7 September 2018”.
109 At the end of Division 106 of the Criminal Code
Add:
106.5
Application provisions for certain amendments in the Counter‑Terrorism
Legislation Amendment (Foreign Fighters) Act 2014
(1) The amendments of section 102.1,
made by Schedule 1 to the Counter‑Terrorism Legislation Amendment
(Foreign Fighters) Act 2014, do not affect the continuity of any
regulations that are in force for the purposes of that section immediately
before the commencement of this section.
(2) Section 104.2, as amended by
Schedule 1 to the Counter‑Terrorism Legislation Amendment (Foreign
Fighters) Act 2014, applies to requests for interim control orders made
after the commencement of this section, where the conduct in relation to which
the request is made occurs before or after that commencement.
(3) Section 104.4, as amended by
Schedule 1 to the Counter‑Terrorism Legislation Amendment (Foreign Fighters)
Act 2014, applies to the making of orders requested after the commencement
of this section, where the conduct in relation to which the request is made
occurs before or after that commencement.
(4) Sections 104.6 and 104.8, as amended
by Schedule 1 to the Counter‑Terrorism Legislation Amendment (Foreign
Fighters) Act 2014, apply to the making of requests after the commencement
of this section, where the conduct in relation to which the request is made
occurs before or after that commencement.
(4A) Section 104.23, as amended by
Schedule 1 to the Counter‑Terrorism Legislation Amendment (Foreign
Fighters) Act 2014, applies to variations of control orders, where the
relevant interim control order is requested after that commencement.
(5) Section 105.4, as amended by
Schedule 1 to the Counter‑Terrorism Legislation Amendment (Foreign
Fighters) Act 2014, applies in relation to applications for preventative
detention orders made after the commencement of this section.
(6) Section 105.7, as amended by Schedule 1
to the Counter‑Terrorism Legislation Amendment (Foreign Fighters) Act 2014,
applies in relation to applications for initial preventative detention orders
made after the commencement of this section.
(7) Section 105.8, as amended by
Schedule 1 to the Counter‑Terrorism Legislation Amendment (Foreign
Fighters) Act 2014, applies in relation to initial preventative detention
orders made after the commencement of this section.
(8) Section 105.12, as amended by
Schedule 1 to the Counter‑Terrorism Legislation Amendment (Foreign
Fighters) Act 2014, applies in relation to continued preventative detention
orders made after the commencement of this section, regardless of when the
initial preventative detention order to which the continued order relates was
made.
(9) Section 105.15, as amended by
Schedule 1 to the Counter‑Terrorism Legislation Amendment (Foreign
Fighters) Act 2014, applies in relation to applications for prohibited
contact orders made after the commencement of this section, regardless of when
the application for the preventative detention order to which the prohibited
contact order relates was made.
(10) Section 105.16, as amended by
Schedule 1 to the Counter‑Terrorism Legislation Amendment (Foreign
Fighters) Act 2014, applies in relation to applications for prohibited
contact orders made after the commencement of this section, regardless of when
the preventative detention order to which the prohibited contact order relates
was made.
110 At the end of Chapter 5 of the Criminal Code
Add:
Part 5.5—Foreign incursions and recruitment
Division 117—Preliminary
117.1
Definitions
(1) In this Part:
armed force does not include an armed force
forming part of the Australian Defence Force.
Defence Minister means the Minister
administering the Defence Force Discipline Act 1982.
engage in a hostile activity: a person engages
in a hostile activity in a foreign country if the person engages in
conduct in that country with the intention of achieving one or more of the
following objectives (whether or not such an objective is achieved):
(a) the overthrow by force or violence
of the government of that or any other foreign country (or of a part of that or
any other foreign country);
(b) the engagement, by that or any
other person, in action that:
(i) falls within
subsection 100.1(2) but does not fall within subsection 100.1(3); and
(ii) if engaged in in
Australia, would constitute a serious offence;
(c) intimidating the public or a
section of the public of that or any other foreign country;
(d) causing the death of, or bodily
injury to, a person who is the head of state of that or any other foreign
country, or holds, or performs any of the duties of, a public office of that or
any other foreign country (or of a part of that or any other foreign country);
(e) unlawfully destroying or damaging
any real or personal property belonging to the government of that or any other
foreign country (or of a part of that or any other foreign country).
Foreign Affairs Minister means the Minister
administering the Diplomatic Privileges and Immunities Act 1967.
government of a foreign country or a part of
a foreign country means the authority exercising effective governmental control
in that foreign country or that part of that foreign country.
listed terrorist organisation has the meaning
given by subsection 100.1(1).
military training means training in the use
of arms or explosives, or the practice of military exercises or movements.
prescribed organisation is:
(a) an organisation that is prescribed
by the regulations for the purposes of this paragraph; or
(b) an organisation referred to in paragraph (b)
of the definition of terrorist organisation in subsection 102.1(1).
recruit includes induce, incite or encourage.
serious offence means an offence against a
law of the Commonwealth, a State or a Territory that is punishable by
imprisonment for 2 years or more.
Prescribing organisations
(2) Before the Governor‑General makes a
regulation prescribing an organisation for the purposes of paragraph (a)
of the definition of prescribed organisation in subsection (1),
the Minister must be satisfied on reasonable grounds that the organisation is
directly or indirectly engaged in, preparing, planning, assisting in or
fostering:
(a) a serious violation of human
rights; or
(b) the engagement, in Australia or a
foreign country allied or associated with Australia, in action that falls
within subsection 100.1(2) but does not fall within
subsection 100.1(3); or
(c) a terrorist act (within the
meaning of section 100.1); or
(d) an act prejudicial to the
security, defence or international relations (within the meaning of
section 10 of the National Security Information (Criminal and Civil
Proceedings) Act 2004) of Australia.
117.2
Extended geographical jurisdiction—category D
Section 15.4 (extended geographical
jurisdiction—category D) applies (subject to this Part) to an offence against
this Part.
Division 119—Foreign incursions and recruitment
119.1
Incursions into foreign countries with the intention of engaging in hostile activities
Offence for entering foreign countries with the
intention of engaging in hostile activities
(1) A person commits an offence if:
(a) the person enters a foreign
country with the intention of engaging in a hostile activity in that or any
other foreign country; and
(b) when the person enters the
country, the person:
(i) is an Australian
citizen; or
(ii) is a resident of
Australia; or
(iii) is a holder under the Migration
Act 1958 of a visa; or
(iv) has voluntarily put
himself or herself under the protection of Australia.
Penalty: Imprisonment for life.
Offence for engaging in a hostile activity in a foreign
country
(2) A person commits an offence if:
(a) the person engages in a hostile
activity in a foreign country; and
(b) when the person engages in the
activity, the person:
(i) is an Australian
citizen; or
(ii) is a resident of
Australia; or
(iii) is a holder under the Migration
Act 1958 of a visa; or
(iv) has voluntarily put
himself or herself under the protection of Australia.
Penalty: Imprisonment for life.
Absolute liability element
(3) Absolute liability applies to paragraphs (1)(b)
and (2)(b).
Note: For absolute liability, see section 6.2.
Exception
(4) Subsections (1) and (2) do not apply
to an act done by a person in the course of, and as part of, the person’s
service in any capacity in or with:
(a) the armed forces of the government
of a foreign country; or
(b) any other armed force if a
declaration under subsection 119.8(1) covers the person and the
circumstances of the person’s service in or with the force.
Note 1: A defendant bears an evidential burden in
relation to the matter in subsection (4): see subsection 13.3(3).
Note 2: For conduct for the defence or international
relations of Australia, see section 119.9.
(5) Paragraph (4)(a) does not apply if:
(a) the person intends to engage, or
engages, in a hostile activity in a foreign country while in or with an
organisation; and
(b) the organisation is a prescribed
organisation at the following time:
(i) for subsection (1)—the
time of the entry referred to in that subsection;
(ii) for subsection (2)—the
time the person engages in the hostile activity referred to in that subsection.
119.2 Entering,
or remaining in, declared areas
(1) A person commits an offence if:
(a) the person enters, or remains in,
an area in a foreign country; and
(b) the area is an area declared by
the Foreign Affairs Minister under section 119.3; and
(c) when the person enters the area, or
at any time when the person is in the area, the person:
(i) is an Australian
citizen; or
(ii) is a resident of
Australia; or
(iii) is a holder under the Migration
Act 1958 of a visa; or
(iv) has voluntarily put
himself or herself under the protection of Australia.
Penalty: Imprisonment for 10 years.
Absolute liability element
(2) Absolute liability applies to paragraph (1)(c).
Note: For absolute liability, see section 6.2.
Exception—entering or remaining solely for legitimate
purposes
(3) Subsection (1) does not apply if the
person enters, or remains in, the area solely for one or more of the following
purposes:
(a) providing aid of a humanitarian nature;
(b) satisfying an obligation to appear
before a court or other body exercising judicial power;
(c) performing an official duty for
the Commonwealth, a State or a Territory;
(d) performing an official duty for
the government of a foreign country or the government of part of a foreign country
(including service in the armed forces of the government of a foreign country),
where that performance would not be a violation of the law of the Commonwealth,
a State or a Territory;
(e) performing an official duty for
the United Nations or an agency of the United Nations;
(f) making a news report of events in
the area, where the person is working in a professional capacity as a
journalist or is assisting another person working in a professional capacity as
a journalist;
(g) making a bona fide visit to a
family member;
(h) any other purpose prescribed by
the regulations.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (3): see subsection 13.3(3).
Exception—entering or remaining solely for service with
armed force other than prescribed organisation
(4) Subsection (1) does not apply if the
person enters, or remains in, the area solely in the course of, and as part of,
the person’s service in any capacity in or with:
(a) the armed forces of the government
of a foreign country; or
(b) any other armed force if a
declaration under subsection 119.8(1) covers the person and the
circumstances of the person’s service in or with the force.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (4): see subsection 13.3(3).
(5) However, subsection (4) does not
apply if:
(a) the person enters, or remains in,
an area in a foreign country while in or with an organisation; and
(b) the organisation is a prescribed
organisation at the time the person enters or remains in the area as referred
to in paragraph (1)(a).
Note 1: For conduct for the defence or international
relations of Australia, see section 119.9.
Note 2: Sections 10.1 and 10.3 also provide
exceptions to subsection (1) of this section (relating to intervening
conduct or event and sudden or extraordinary emergency respectively).
Sunset provision
(6) This section ceases to have effect at the
end of 7 September 2018.
119.3 Declaration
of areas for the purposes of section 119.2
(1) The Foreign Affairs Minister may, by
legislative instrument, declare an area in a foreign country for the purposes
of section 119.2 if he or she is satisfied that a listed terrorist
organisation is engaging in a hostile activity in that area of the foreign
country.
(2) A single declaration may cover areas in 2
or more foreign countries if the Foreign Affairs Minister is satisfied that one
or more listed terrorist organisations are engaging in a hostile activity in
each of those areas.
(2A) A declaration must not cover an entire
country.
Requirement to brief Leader of the Opposition
(3) Before making a declaration, the Foreign
Affairs Minister must arrange for the Leader of the Opposition in the House of
Representatives to be briefed in relation to the proposed declaration.
Cessation of declaration
(4) A declaration ceases to have effect on
the third anniversary of the day on which it takes effect. To avoid doubt, this
subsection does not prevent:
(a) the revocation of the declaration;
or
(b) the making of a new declaration
the same in substance as the previous declaration (whether the new declaration
is made or takes effect before or after the previous declaration ceases to have
effect because of this subsection).
Note: An offence committed in relation to the
declared area before the cessation can be prosecuted after the cessation: see
section 7 of the Acts Interpretation Act 1901 as it applies because
of paragraph 13(1)(a) of the Legislative Instruments Act 2003.
(5) If:
(a) an area is declared under subsection (1);
and
(b) the Foreign Affairs Minister
ceases to be satisfied that a listed terrorist organisation is engaging in a
hostile activity in the area;
the Foreign Affairs Minister must revoke the declaration.
Note: The Foreign Affairs Minister may, for example,
cease to be satisfied that a listed terrorist organisation is engaging in a
hostile activity in the area if the organisation ceases to be specified in the
regulations.
(6) To avoid doubt, subsection (5) does
not prevent an area from being subsequently declared if the Foreign Affairs Minister
becomes satisfied as mentioned in subsection (1).
Review of declaration
(7) The Parliamentary Joint Committee on
Intelligence and Security may review a declaration before the end of the period
during which the declaration may be disallowed under section 42 of the Legislative
Instruments Act 2003.
119.4
Preparations for incursions into foreign countries for purpose of engaging in
hostile activities
Preparatory acts
(1) A person commits an offence if:
(a) the person engages in conduct (whether
within or outside Australia); and
(b) the conduct is preparatory to the
commission of an offence against section 119.1 (whether by that or any
other person); and
(c) when the person engages in the
conduct, the person:
(i) is an Australian
citizen; or
(ii) is a resident of
Australia; or
(iii) is a holder under the Migration
Act 1958 of a visa; or
(iv) has voluntarily put
himself or herself under the protection of Australia; or
(v) is a body corporate incorporated
by or under a law of the Commonwealth or of a State or Territory.
Penalty: Imprisonment for life.
Accumulating weapons etc.
(2) A person commits an offence if:
(a) the person (whether within or
outside Australia) accumulates, stockpiles or otherwise keeps arms, explosives,
munitions, poisons or weapons; and
(b) the person engages in that conduct
with the intention that an offence against section 119.1 will
be committed (whether by that or any other person); and
(c) when the person engages in the
conduct, the person:
(i) is an Australian
citizen; or
(ii) is a resident of
Australia; or
(iii) is a holder under the Migration
Act 1958 of a visa; or
(iv) has voluntarily put
himself or herself under the protection of Australia; or
(v) is a body corporate
incorporated by or under a law of the Commonwealth or of a State or Territory.
Penalty: Imprisonment for life.
Providing or participating in training
(3) A person commits an offence if:
(a) the person engages in any of the
following conduct (whether within or outside Australia):
(i) providing military training
to another person;
(ii) participating in providing
military training to another person;
(iii) being present at a
meeting or assembly of persons, where the person intends at that meeting or
assembly to provide, or participate in providing, military training to another
person; and
(b) the person engages in the conduct
intending to prepare the other person to commit an offence against section 119.1;
and
(c) when the person engages in the
conduct, the person:
(i) is an Australian
citizen; or
(ii) is a resident of
Australia; or
(iii) is a holder under the Migration
Act 1958 of a visa; or
(iv) has voluntarily put
himself or herself under the protection of Australia; or
(v) is a body corporate
incorporated by or under a law of the Commonwealth or of a State or Territory.
Penalty: Imprisonment for life.
(4) A person commits an offence if:
(a) the person engages in conduct of
either of the following kinds (whether within or outside Australia):
(i) allowing military
training to be provided to himself or herself;
(ii) allowing himself or
herself to be present at a meeting or assembly of persons intending to allow military
training to be provided to himself or herself; and
(b) the person engages in the conduct with
the intention of committing an offence against section 119.1; and
(c) when the person engages in the
conduct, the person:
(i) is an Australian
citizen; or
(ii) is a resident of
Australia; or
(iii) is a holder under the Migration
Act 1958 of a visa; or
(iv) has voluntarily put
himself or herself under the protection of Australia; or
(v) is a body corporate
incorporated by or under a law of the Commonwealth or of a State or Territory.
Penalty: Imprisonment for life.
Giving or receiving goods and services to promote the
commission of an offence
(5) A person commits an offence if:
(a) the person engages in any of the
following conduct (whether within or outside Australia):
(i) giving money or goods
to, or performing services for, any other person, body or association;
(ii) receiving or soliciting
money or goods, or the performance of services; and
(b) the person engages in the conduct with
the intention of supporting or promoting the commission of an offence against
section 119.1; and
(c) when the person engages in the
conduct, the person:
(i) is an Australian
citizen; or
(ii) is a resident of
Australia; or
(iii) is a holder under the Migration
Act 1958 of a visa; or
(iv) has voluntarily put
himself or herself under the protection of Australia; or
(v) is a body corporate
incorporated by or under a law of the Commonwealth or of a State or Territory.
Penalty: Imprisonment for life.
Absolute liability element
(6) Absolute liability applies to paragraphs (1)(c),
(2)(c), (3)(c), (4)(c) and (5)(c).
Note: For absolute liability, see section 6.2.
Exception
(7) This section does not apply if the person
engages in conduct solely by way of, or for the purposes of, the provision of aid
of a humanitarian nature.
Note 1: A defendant bears an evidential burden in
relation to the matter in subsection (7): see subsection 13.3(3).
Note 2: For conduct for the defence or international
relations of Australia, see section 119.9.
Disregarding paragraphs 119.1(1)(b) and (2)(b)
(8) A reference in this section to the
commission of an offence against section 119.1 includes a reference to
doing an act that would constitute an offence against section 119.1 if paragraphs
119.1(1)(b) and (2)(b) were disregarded.
119.5 Allowing
use of buildings, vessels and aircraft to commit offences
Use of buildings
(1) A person commits an offence if:
(a) the person is an owner, lessee,
occupier, agent or superintendent of any building, room, premises or other place;
and
(b) the person permits a meeting or
assembly of persons to be held in that place (whether the person or the place
is within or outside Australia); and
(c) by permitting the meeting or assembly
to be so held, the person intends to commit, or support or promote the
commission of, an offence against section 119.4; and
(d) when the person permits the
meeting to be so held, the person:
(i) is an Australian
citizen; or
(ii) is a resident of
Australia; or
(iii) is a holder under the Migration
Act 1958 of a visa; or
(iv) has voluntarily put
himself or herself under the protection of Australia; or
(v) is a body corporate
incorporated by or under a law of the Commonwealth or of a State or Territory.
Penalty: Imprisonment for life.
Use of vessels or aircraft
(2) A person commits an offence if:
(a) the person is:
(i) an owner, charterer,
lessee, operator, agent or master of a vessel; or
(ii) an owner, charterer,
lessee, operator or pilot in charge of an aircraft; and
(b) the person permits the vessel or
aircraft to be used (whether the person, vessel or aircraft is within or
outside Australia); and
(c) by permitting the use, the person
intends to commit, or support or promote the commission of, an offence against section 119.4;
and
(d) when the person permits the use,
the person:
(i) is an Australian
citizen; or
(ii) is a resident of
Australia; or
(iii) is a holder under the Migration
Act 1958 of a visa; or
(iv) has voluntarily put
himself or herself under the protection of Australia; or
(v) is a body corporate
incorporated by or under a law of the Commonwealth or of a State or Territory.
Penalty: Imprisonment for life.
Absolute liability element
(3) Absolute liability applies to paragraphs (1)(d)
and (2)(d).
Note: For absolute liability, see section 6.2.
Exception
(4) This section does not apply if the person
engages in conduct solely by way of, or for the purposes of, the provision of
aid of a humanitarian nature.
Note 1: A defendant bears an evidential burden in
relation to the matter in subsection (4): see subsection 13.3(3).
Note 2: For conduct for the defence or international
relations of Australia, see section 119.9.
119.6
Recruiting persons to join organisations engaged in hostile activities against
foreign governments
A person commits an offence if:
(a) the person recruits, in Australia,
another person to become a member of, or to serve in any capacity with, a body
or association of persons; and
(b) the objectives of the body or
association include any one or more of the objectives referred to in the
definition of engage in a hostile activity in subsection 117.1(1).
Note: For conduct for the defence or international
relations of Australia, see section 119.9.
Penalty: Imprisonment for 25 years.
119.7
Recruiting persons to serve in or with an armed force in a foreign country
Recruiting others to serve with foreign armed forces
(1) A person commits an offence if the person
recruits, in Australia, another person to serve in any capacity in or with an
armed force in a foreign country.
Penalty: Imprisonment for 10 years.
Publishing recruitment advertisements
(2) A person commits an offence if:
(a) the person publishes in Australia:
(i) an advertisement; or
(ii) an item of news that
was procured by the provision or promise of money or any other consideration;
and
(b) the person is reckless as to the
fact that the publication of the advertisement or item of news is for the
purpose of recruiting persons to serve in any capacity in or with an armed
force in a foreign country.
Penalty: Imprisonment for 10 years.
(3) A person commits an offence if:
(a) the person publishes in Australia:
(i) an advertisement; or
(ii) an item of news that
was procured by the provision or promise of money or any other consideration;
and
(b) the advertisement or item of news contains
information:
(i) relating to the place
at which, or the manner in which, persons may make applications to serve, or
obtain information relating to service, in any capacity in or with an armed
force in a foreign country; or
(ii) relating to the manner
in which persons may travel to a foreign country for the purpose of serving in
any capacity in or with an armed force in a foreign country.
Penalty: Imprisonment for 10 years.
Facilitating recruitment
(4) A person commits an offence if:
(a) the person engages in conduct in
Australia; and
(b) the person engages in the conduct intending
to facilitate or promote the recruitment of persons to serve in any capacity in
or with an armed force in a foreign country.
Penalty: Imprisonment for 10 years.
Exception
(5) This section does not apply in relation
to service of a person in or with an armed force in circumstances if a
declaration under subsection 119.8(2) covers the person and the
circumstances of the person’s service in or with the armed force.
Note 1: A defendant bears an evidential burden in
relation to the matter in subsection (5): see subsection 13.3(3).
Note 2: For conduct for the defence or international
relations of Australia, see section 119.9.
Armed forces that are not part of the government of a foreign
country
(6) A reference in this section to an armed
force in a foreign country includes any armed force in a foreign country,
whether or not the armed force forms part of the armed forces of the government
of that foreign country.
(7) Without limiting this section, a person recruits
another person to serve in or with an armed force in a foreign country if the
other person enters a commitment or engagement to serve in any capacity in or
with an armed force, whether or not the commitment or engagement is legally
enforceable or constitutes legal or formal enlistment in that force.
119.8 Declaration
in relation to specified armed forces
Service
(1) The Minister may, by legislative
instrument, declare that section 119.1 or 119.2 does not apply to a
specified person or class of persons in any circumstances or specified
circumstances if the Minister is satisfied that it is in the interests of the
defence or international relations of Australia to permit the service of that
person or class of persons in those circumstances in or with:
(a) a specified armed force in a
foreign country; or
(b) a specified armed force in a
foreign country in a specified capacity.
Recruitment
(2) The Minister may, by legislative
instrument, declare that section 119.7 does not apply to a specified
person or class of persons in any circumstances or specified circumstances if
the Minister is satisfied that it is in the interests of the defence or
international relations of Australia to permit the recruitment in Australia of that
person or class of persons to serve in those circumstances in or with:
(a) a specified armed force in a foreign
country; or
(b) a specified armed force in a foreign
country in a specified capacity.
119.9
Exception—conduct for defence or international relations of Australia
This Division does not apply in relation
to conduct engaged in by a person acting in the course of the person’s duty to
the Commonwealth in relation to the defence or international relations of
Australia.
Note 1: A defendant bears an evidential burden in
relation to the matter in this section: see subsection 13.3(3).
Note 2: See also section 119.12 (declarations for
the purposes of proceedings).
119.10
Mode of trial
(1) A prosecution for any of the following
offences is (subject to subsection (2)) to be on indictment:
(a) an offence against this Division;
(b) an offence against section 6
of the Crimes Act 1914, or an ancillary offence, that relates to an
offence against this Division.
(2) If the law of a State or Territory provides
for a person who pleads guilty to a charge in proceedings for the person’s
commitment for trial on indictment to be committed to a higher court and dealt
with otherwise than on indictment, a person charged in that State or Territory
with an offence referred to in subsection (1) may be dealt with in
accordance with that law.
119.11
Consent of Attorney‑General required for prosecutions
(1) Proceedings for the commitment of a
person for the following must not be instituted without the written consent of
the Attorney‑General:
(a) the trial on indictment for an
offence against the following provisions:
(i) this Division;
(ii) section 6 of the Crimes
Act 1914 to the extent that it relates to an offence against this Division;
(b) the summary trial of a person for
an offence referred to in paragraph (a).
(2) However, the following steps may be taken
(but no further steps in proceedings may be taken) without consent having been
given:
(a) a person may be charged with an
offence referred to in paragraph (1)(a);
(b) a person may be arrested for an
offence referred to in paragraph (1)(a), and a warrant for such an arrest
may be issued and executed;
(c) a person so charged may be
remanded in custody or on bail.
(3) Nothing in subsection (2) prevents
the discharge of the accused if proceedings are not continued within a
reasonable time.
119.12
Declarations for the purposes of proceedings
(1) The Foreign Affairs Minister may, in
writing, declare that:
(a) a specified authority is in
effective governmental control in a specified foreign country or part of a foreign
country; or
(b) a specified organisation is not an
armed force, or part of an armed force, of the government of a foreign country.
(2) The Defence Minister may, in writing,
declare that if a specified person had done a specified act (being an act
alleged to constitute an offence) the person would not have been acting in the course
of the person’s duty to the Commonwealth in relation to the defence or
international relations of Australia.
(3) Without limiting subsection (1) or
(2), a declaration under that subsection may be made in relation to a specified
day or period.
(4) In proceedings for an offence referred to
in paragraph 119.11(1)(a), a certificate under this section is prima facie
evidence of the matters stated in the certificate.
Customs Act 1901
111 Subsection 183UA(1) (definition of terrorist act)
Repeal the definition, substitute:
terrorist act has the meaning given by
section 100.1 of the Criminal Code.
112 Subsections 183UA(4), (4A) and (5)
Repeal the subsections.
113 Subsection 228(7) (definition of terrorist act)
Repeal the definition, substitute:
terrorist act has the meaning given by section 100.1
of the Criminal Code.
114 Application of amendments
The amendments of sections 183UA and 228 of the Customs
Act 1901 made by this Schedule apply in relation to any terrorist act
(whether occurring before, on or after the commencement of this item).
Foreign Evidence Act 1994
115 Subsection 3(1) (paragraph (c) of the
definition of designated offence)
Repeal the paragraph, substitute:
(c) an offence against either of the
following provisions of the Charter of the United Nations Act 1945:
(i) Part 4 of that
Act;
(ii) Part 5 of that
Act, to the extent that it relates to the Charter of the United Nations
(Sanctions—Al‑Qaida) Regulations 2008; or
116 Subsection 3(1) (after paragraph (d) of the
definition of designated offence)
Insert:
(da) an offence against Subdivision B of
Division 80 of the Criminal Code; or
117 Subsection 3(1) (after paragraph (f) of the
definition of designated offence)
Insert:
(fa) an offence against Part 5.5
of the Criminal Code; or
118 Subsection 3(1) (paragraph (j) of the
definition of designated offence)
Repeal the paragraph.
119 Subsection 3(1)
Insert:
duress has the meaning given by subsection 27D(3).
foreign authority means an authority of a
foreign country or of part of a foreign country.
foreign government material means material
provided by a foreign authority to an authority of the Commonwealth.
120 Subsection 3(1) (paragraph (a) of the
definition of foreign material)
Omit “Part 3”, substitute “Parts 3 and 3A”.
121 Subsection 3(1)
Insert:
member of the Australian Federal Police has
the same meaning as in the Australian Federal Police Act 1979.
senior AFP member means:
(a) the Commissioner of the Australian
Federal Police; or
(b) a Deputy Commissioner of the Australian
Federal Police; or
(c) a senior executive AFP employee
(within the meaning of the Australian Federal Police Act 1979) who is a
member of the Australian Federal Police; or
(d) a member of the Australian Federal
Police occupying a position in the Australian Federal Police that is equivalent
to or higher than one of the positions mentioned in paragraphs (a), (b)
and (c), whether or not a declaration under section 25 of that Act is in
force in respect of the person.
substantial adverse effect means an effect
that is adverse and not insubstantial, insignificant or trivial.
terrorism‑related proceeding means:
(a) a criminal proceeding for a
designated offence; or
(b) a proceeding under the Proceeds
of Crime Act 2002 relating to a designated offence; or
(c) a proceeding under Division 104
of the Criminal Code.
torture has the meaning given by subsection 27D(3).
122 After subsection 20(1)
Insert:
(1A) However, this Part does not apply to a
terrorism‑related proceeding. This does not prevent testimony or an exhibit
from being foreign material for the purposes of Part 3A.
Note: Part 3A deals with use of foreign
material in terrorism‑related proceedings.
123 Subsection 25(1) (note)
Repeal the note.
124 Section 25A
Repeal the section.
125 After Part 3
Insert:
Part 3A—Use of foreign material and foreign government material in
terrorism‑related proceedings
27A
Foreign material may be adduced as evidence
(1) Foreign material may be adduced in a
terrorism‑related proceeding.
Note 1: The court has a discretion to direct that
foreign material not be adduced if it would have a substantial adverse effect
on the right of a party to the proceeding to receive a fair hearing (see
section 27C).
Note 2: Section 27D deals with admissibility of
foreign material adduced.
(2) However, foreign material is not to be
adduced as evidence if it appears to the court’s satisfaction at the hearing of
the proceeding that the person who gave the testimony concerned is in Australia
and is able to attend the hearing.
27B
Foreign government material may be adduced as evidence
Adducing foreign government material
(1) Foreign government material may be
adduced in a terrorism‑related proceeding if the material is:
(a) annexed to a written statement by
a senior AFP member that:
(i) is verified on oath or
affirmation by the member; and
(ii) meets the requirements
in subsection (2); and
(b) accompanied by a certificate of
the Attorney‑General given under subsection (3).
Note 1: The court has a discretion to direct that
foreign government material not be adduced if it would have a substantial
adverse effect on the right of a party to the proceeding to receive a fair
hearing (see section 27C).
Note 2: Section 27D deals with admissibility of
foreign government material adduced.
Content of statement by senior AFP member
(2) A statement by a senior AFP member for
the purposes of paragraph (1)(a) must:
(a) relate only to foreign government
material annexed to the statement; and
(b) state what the material is; and
(c) state, to the best of the senior
AFP member’s knowledge:
(i) how the material, and
any information contained in the material, was obtained by the first foreign
authority to obtain or produce the material or information; and
(ii) each step in the
process by which the material or information came from that foreign authority
into the possession of the Australian Federal Police.
Attorney‑General’s certificate
(3) The Attorney‑General may certify, in a
form prescribed under subsection (4), that he or she is satisfied that it
was not practicable to obtain the foreign government material or the
information in the foreign government material as foreign material.
(4) The Attorney‑General may by legislative
instrument prescribe a form for a certificate to be given under subsection (3).
(5) A certificate given under subsection (3)
is not a legislative instrument.
27C
Discretion to prevent material being adduced
(1) This section applies in relation to a
terrorism‑related proceeding described in an item of the following table if a
person described in that item seeks to adduce foreign material or foreign
government material in the proceeding.
|
Persons seeking to adduce material in proceedings
|
|
Item
|
Proceeding
|
Person seeking to adduce material
|
|
1
|
Criminal proceeding for a designated offence
|
Prosecutor
|
|
2
|
Proceeding under the Proceeds of Crime Act 2002
relating to a designated offence
|
The responsible authority under that Act in relation to
the proceeding
|
|
3
|
Proceeding under Division 104 of the Criminal Code
|
A member of the Australian Federal Police or a special
member (within the meaning of the Australian Federal Police Act 1979)
|
(2) The court may direct that the material
not be adduced as evidence in the proceeding if the court is satisfied that
adducing the material would have a substantial adverse effect on the right of
another party to the proceeding to receive a fair hearing.
27D
Admissibility of material adduced
(1) The following are admissible in a
terrorism‑related proceeding, subject to subsection (2) but despite any
other Australian law about evidence:
(a) foreign material adduced under subsection 27A(1)
in the proceeding;
(b) foreign government material
adduced under subsection 27B(1) in the proceeding;
(c) the statement to which the foreign
government material was annexed as described in paragraph 27B(1)(a);
(d) the certificate that accompanied
the foreign government material as described in paragraph 27B(1)(b).
Exception to admissibility
(2) Foreign material or foreign government
material is not admissible if the court is satisfied that the material, or
information contained in the material, was obtained directly as a result of
torture or duress.
(3) In subsection (2):
duress means a threat that:
(a) is made explicitly or implicitly
to a person; and
(b) is a threat to imminently cause
one or both of the following unless material or information is provided:
(i) death or serious
injury of the person, a member of the person’s family or a third party;
(ii) damage to, or loss by
the person of, the person’s significant assets; and
(c) is a threat to which a reasonable person
would respond by providing the material or information.
torture means an act or omission by which
severe pain or suffering, whether physical or mental, is intentionally
inflicted on a person:
(a) for the purpose of obtaining from
the person or from a third person information or a confession; or
(b) for the purpose of punishing the
person for an act that the person or a third person has committed or is
suspected of having committed; or
(c) for the purpose of intimidating or
coercing the person or a third person; or
(d) for a purpose related to a purpose
mentioned in paragraph (a), (b) or (c); or
(e) for any reason based on
discrimination that is inconsistent with the Articles of the International Covenant
on Civil and Political Rights done at New York on 16 December 1966;
but does not include an act or omission arising only from,
inherent in or incidental to lawful sanctions that are not inconsistent with
the Articles of the Covenant.
Note: The International Covenant on Civil and
Political Rights is in Australian Treaty Series 1980 No. 23 ([1980] ATS
23) and could in 2014 be viewed in the Australian Treaties Library on the
AustLII website (http://www.austlii.edu.au).
(4) If foreign government material is not
admissible, neither of the following is admissible, so far as it relates to the
inadmissible foreign government material:
(a) the statement described in paragraph (1)(c);
(b) the certificate described in paragraph (1)(d).
27DA
Warning and informing jury
(1) If foreign material or foreign government
material is admitted in a terrorism‑related proceeding conducted before a jury,
and a party to the proceeding so requests, the judge is to:
(a) warn the jury that the material
may be unreliable; and
(b) inform the jury of matters that
may cause it to be unreliable; and
(c) warn the jury of the need for
caution in determining whether to accept the material and the weight to be
given to it.
(2) The judge need not comply with
subsection (1) if there are good reasons for not doing so.
(3) It is not necessary that a particular
form of words be used in giving the warning or information.
(4) This section does not affect any other
power of the judge to give a warning to, or to inform, the jury.
27E
Operation of other laws
This Part does not limit the ways in
which a matter may be proved, or evidence may be adduced, under this Act (other
than this Part) or any other Australian law.
126 Application of amendments
(1) The amendments of the Foreign Evidence Act 1994
made by this Schedule apply in relation to adducing evidence in proceedings instituted
on or after the commencement of the amendments, whether the evidence was
obtained before, on or after that commencement.
(2) However, the repeal of paragraph (j) of the
definition of designated offence in subsection 3(1) of the Foreign
Evidence Act 1994 by this Schedule does not prevent an offence against the Crimes
(Foreign Incursions and Recruitment) Act 1978 from being a designated
offence for the purposes of proceedings instituted on or after that repeal.
Foreign Passports (Law Enforcement
and Security) Act 2005
127 Subsection 5(1)
Omit “(1)”.
128 Subsection 5(1)
Insert:
ASIO means the Australian Security
Intelligence Organisation.
129 At the end of Division 1 of Part 2
Add:
15A
Request for 14‑day surrender relating to security risk
(1) The Director‑General of Security may
request the Minister to make an order under section 16A in relation to a
person’s foreign travel documents if the Director‑General suspects on
reasonable grounds that:
(a) the person may leave Australia to
engage in conduct that might prejudice the security of Australia or a foreign
country; and
(b) the person should be required to
surrender the person’s foreign travel documents in order to prevent the person
from engaging in the conduct.
(2) If the Minister has made an order under
section 16A in relation to a person’s foreign travel documents, another
request under subsection (1) of this section relating to the person must
not be made unless the grounds for suspicion mentioned in that subsection
include information first obtained by the Director‑General of Security or an
officer or employee of ASIO more than 14 days after the Minister made the
order.
(3) The Director‑General of Security may, in
writing, delegate his or her power under subsection (1) to a Deputy
Director‑General of Security (within the meaning of the Australian Security
Intelligence Organisation Act 1979).
(4) In exercising power under a delegation,
the delegate must comply with any directions of the Director‑General of
Security.
130 Section 16 (heading)
Repeal the heading, substitute:
16
Demand for surrender of foreign travel document ordered by Minister on request
under section 13, 14 or 15
131 After section 16
Insert:
16A
Demand for 14‑day surrender of foreign travel document ordered by Minister on
request under section 15A
(1) The Minister may, on request under
section 15A relating to a person’s foreign travel documents, order the
surrender of the documents.
(2) If the Minister has made an order under subsection (1),
an enforcement officer may demand that the person surrender to the officer the
person’s foreign travel documents.
(3) If the person does not immediately
surrender the person’s foreign travel documents, the officer may:
(a) seize the person’s foreign travel
documents; and
(b) seize any foreign travel document
of the person that is not in the possession or control of any person.
(4) Subsection (3) does not authorise an
enforcement officer to enter premises that the officer would not otherwise be
authorised to enter.
(5) A person commits an offence if:
(a) an enforcement officer demands
under subsection (2) that the person surrender the person’s foreign travel
documents; and
(b) the officer informs the person
that the Minister has ordered the surrender of the person’s foreign travel
documents and that the officer is authorised to make the demand; and
(c) the officer informs the person
that it may be an offence not to comply with the demand; and
(d) the person has possession or
control of one or more of the person’s foreign travel documents; and
(e) the person fails to surrender
those documents to the officer immediately.
Penalty: Imprisonment for 6 months or 10 penalty units, or
both.
(6) A foreign travel document obtained by an
enforcement officer under this section must be returned, to the person to whom
it was issued, 14 days after the Minister made the order under subsection (1)
relating to the document.
(7) However, subsection (6) does not
apply if, within the 14 days described in that subsection, the Minister makes
an order under subsection 16(1). In that case, subsections 16(6) and
(7) apply in relation to the foreign travel document as if it had been obtained
by an enforcement officer under section 16.
Independent National Security
Legislation Monitor Act 2010
131A After subsection 6(1A)
Insert:
(1B) The Independent National Security
Legislation Monitor must complete the review under paragraph (1)(a) of the
following counter‑terrorism and national security legislation by
7 September 2017:
(a) Division 3 of Part III
of the Australian Security Intelligence Organisation Act 1979 and any
other provision of that Act as far as it relates to that Division;
(b) Division 3A of Part IAA
of the Crimes Act 1914 and any other provision of that Act as far as it
relates to that Division;
(c) Divisions 104 and 105 of the Criminal
Code and any other provision of the Criminal Code Act 1995 as far as
it relates to those Divisions;
(d) sections 119.2 and 119.3 of
the Criminal Code and any other provision of the Criminal Code Act
1995 as far as it relates to those sections.
Intelligence Services Act 2001
131B Section 3
Insert:
AFP means the Australian Federal Police.
132 Paragraph 29(1)(ba)
Repeal the paragraph, substitute:
(baa) to monitor and to review the
performance by the AFP of its functions under Part 5.3 of the Criminal
Code; and
(bab) to report to both Houses of the
Parliament, with such comments as it thinks fit, upon any matter appertaining
to the AFP or connected with the performance of its functions under
Part 5.3 of the Criminal Code to which, in the opinion of the
Committee, the attention of the Parliament should be directed; and
(bac) to inquire into any question in
connection with its functions under paragraph (baa) or (bab) that is
referred to it by either House of the Parliament, and to report to that House
upon that question; and
133 Paragraph 29(1)(bb)
Omit “22 January 2016”, substitute “7 March 2018”.
133A Paragraph 29(3)(g)
Omit “or ONA”, substitute “, ONA or AFP”.
133B At the end of subsection 29(3)
Add:
; or (j) reviewing sensitive operational
information or operational methods available to the AFP; or
(k) reviewing particular operations or
investigations that have been, are being or are proposed to be undertaken by
the AFP.
133C At the end of section 30
Add:
; (d) the Commissioner of the AFP.
133D Clause 1A of Schedule 1 (definition of agency)
Omit “or ONA”, substitute “, ONA or AFP”.
133E Clause 1A of Schedule 1 (at the end of the
definition of agency head)
Add:
; or (e) the Commissioner of the AFP.
133F Clause 1A of Schedule 1 (definition of staff
member)
After “employee of the agency,”, insert “a member or special
member of the agency (within the meaning of the Australian Federal Police
Act 1979),”.
133G Application of amendments
The amendments of the Intelligence Services Act 2001 made
by this Schedule apply in relation to the performance of the AFP of its
functions under Part 5.3 of the Criminal Code, whether those
functions are performed before or after this item commences.
National Health Security Act 2007
134 Paragraph 89(1)(c)
After “5.3”, insert “or 5.5”.
135 Paragraph 92(c)
After “5.3”, insert “or 5.5”.
Parliamentary Joint Committee on Law
Enforcement Act 2010
135A At the end of subsection 7(2)
Add:
; or (g) monitoring, reviewing or reporting
on the performance by the AFP of its functions under Part 5.3 of the Criminal
Code.
135B Application of amendment
The amendment of the Parliamentary Joint Committee on Law
Enforcement Act 2010 made by this Schedule applies in relation to the
monitoring, reviewing, or reporting on, after this item commences, of the
performance of the AFP of its functions under Part 5.3 of the Criminal
Code (whether those functions are performed before or after this item
commences).
Proceeds of Crime Act 2002
136 Section 338 (definition of terrorism offence)
Repeal the definition, substitute:
terrorism offence has the same meaning as in
the Crimes Act 1914.
Sea Installations Act 1987
137 Schedule
Omit “Crimes (Foreign Incursions and Recruitment) Act 1978”.
Telecommunications (Interception and
Access) Act 1979
138 After subparagraph 5D(1)(e)(i)
Insert:
(ia) Subdivision B of
Division 80 of the Criminal Code; or
(ib) section 80.2C of
the Criminal Code; or
139 At the end of paragraph 5D(1)(e)
Add:
(v) section 104.27 of
the Criminal Code; or
(vi) Division 119 of
the Criminal Code; or
Terrorism Insurance Act 2003
140 Section 3 (definition of terrorist act)
Repeal the definition, substitute:
terrorist act has the meaning given by
section 100.1 of the Criminal Code.
141 Section 5
Repeal the section.
142 Paragraph 8(2)(b)
Omit “section 5”, substitute “section 100.1 of the Criminal
Code”.
143 Application of amendments
The amendments of the Terrorism Insurance Act 2003 made by
this Schedule apply in relation to any terrorist act (whether occurring before,
on or after the commencement of this item).
Part 2—Repeals
Crimes (Foreign Incursions and
Recruitment) Act 1978
144 The whole of the Act
Repeal the Act.
145 Transitional provision
Despite the repeal of section 11 of the Crimes (Foreign
Incursions and Recruitment) Act 1978, that section continues to apply after
this item commences in relation to any certificate that is in force under that
section immediately before that repeal.
Schedule 2—Stopping
welfare payments
Part 1—Main amendments
A New Tax System (Family Assistance)
Act 1999
1 Subsection 3(1)
Insert:
Attorney‑General’s Secretary means the
Secretary of the Department administered by the Minister administering the Australian
Security Intelligence Organisation Act 1979.
Foreign Affairs Minister means the Minister
administering the Australian Passports Act 2005.
Human Services Secretary means the Secretary
of the Department administered by the Minister administering the Human
Services (Centrelink) Act 1997.
Immigration Minister means the Minister
administering the Migration Act 1958.
security notice means a notice under section 57GJ.
2 At the end of Part 3
Add:
Division 7—Loss of family assistance for individuals on security grounds
57GH
Simplified outline of this Division
Individuals who might prejudice the
security of Australia or a foreign country may lose family assistance.
57GI Loss
of family assistance for individuals on security grounds
Security notice for recipient of family assistance
(1) If a security notice is given to the
Minister in relation to an individual, then while the notice is in force:
(a) no family assistance is to be paid
to the individual; and
(b) the individual is not eligible for
family assistance.
Note 1: A security notice is a notice under section 57GJ.
Note 2: This Division does not apply in relation to
child care benefit or child care rebate: see section 57GQ.
(2) If a security notice is given to the
Minister in relation to an individual, then any determination that the
individual is entitled to be paid family assistance, that is in force
immediately before the day the notice comes into force, ceases to be in force
on that day.
(3) If a security notice given to the
Minister in relation to an individual ceases to be in force, then the
individual is not eligible for family assistance for any day while the notice
was in force.
(4) However, if:
(a) a security notice given to the
Minister in relation to an individual recommends that payments of family
assistance of the individual be paid to a payment nominee of the individual
under Part 8B of the Family Assistance Administration Act; and
(b) apart from subsections (1) to
(3), the individual would be eligible for the whole or a part of that family
assistance;
then that whole or part may be paid to a payment nominee
of the individual under that Part.
(5) For the purposes of subsection (4),
paragraph 219TD(2)(b) of the Family Assistance Administration Act does not
apply.
(6) For the purposes of subsection (4),
section 219TN of the Family Assistance Administration Act does not apply.
Instead, any amount paid to a payment nominee of the individual is to be applied
by the nominee in accordance with a written direction given by the Secretary
under this subsection.
Security notice for individual in respect of whom
family assistance payable
(7) If:
(a) a security notice is given to the
Minister in relation to an individual; and
(b) the individual is aged 19 or less
on the day the notice is given;
then, for any day while the notice is or was in force, the
individual cannot be an FTB child of another individual, cannot be a regular
care child of another individual and cannot be a client of an approved care
organisation.
Relationship with other provisions
(8) Subsections (1) to (7) have effect
despite any other provision of the family assistance law.
Notification to individual
(9) If a determination in relation to an
individual ceases to be in force because of subsection (2), the Secretary
must cause reasonable steps to be taken to notify the individual of the
cessation.
57GJ
Security notice from Attorney‑General
(1) The Attorney‑General may give the
Minister a written notice requiring that this Division apply in relation to a
specified individual if:
(a) the Foreign Affairs Minister gives
the Attorney‑General a notice under section 57GK in relation to the
individual; or
(b) the Immigration Minister gives the
Attorney‑General a notice under section 57GL in relation to the
individual.
(2) A notice under this section may recommend
that payments of family assistance of the individual, to the extent set out in
the notice, be paid to a payment nominee of the individual under Part 8B
of the Family Assistance Administration Act.
(3) Before giving a notice under this
section, the Attorney‑General must have regard to the following:
(a) the extent (if any) that any
payments of family assistance of the individual are being, or may be, used for
a purpose that might prejudice the security of Australia or a foreign country,
if the Attorney‑General is aware of that extent;
(b) the likely effect of the operation
of section 57GI on the individual’s dependants, if the Attorney‑General is
aware of those dependants.
(4) The Attorney‑General’s Secretary must:
(a) seek the advice of the Human
Services Secretary in relation to paragraph (3)(b); and
(b) inform the Attorney‑General of
that advice.
(5) Subsection (3) does not limit the
matters to which regard may be had.
57GK
Notice from Foreign Affairs Minister
If:
(a) either:
(i) under subsection 14(2)
of the Australian Passports Act 2005, the Foreign Affairs Minister
refuses to issue an individual an Australian passport; or
(ii) under section 22
of that Act, the Foreign Affairs Minister cancels an individual’s Australian
passport; and
(b) the refusal or cancellation was
because of a refusal/cancellation request made in relation to the individual
under subsection 14(1) of that Act; and
(c) the request was made on the basis
of the circumstance mentioned in subparagraph 14(1)(a)(i) of that Act;
the Foreign Affairs Minister may give the Attorney‑General
a written notice setting out those matters.
57GL
Notice from Immigration Minister
If:
(a) the Immigration Minister cancels
an individual’s visa under section 116 or 128 of the Migration Act 1958
because of an assessment by the Australian Security Intelligence Organisation
that the individual is directly or indirectly a risk to security (within the
meaning of section 4 of the Australian Security Intelligence
Organisation Act 1979); or
(b) the Immigration Minister cancels
an individual’s visa under section 134B of the Migration Act 1958
(emergency cancellation on security grounds) and decides not to revoke that
cancellation under subsection 134C(3) of that Act; or
(c) the Immigration Minister cancels
an individual’s visa under section 501 of the Migration Act 1958
and there is an assessment by the Australian Security Intelligence Organisation
that the individual is directly or indirectly a risk to security (within the
meaning of section 4 of the Australian Security Intelligence
Organisation Act 1979);
the Immigration Minister may give the Attorney‑General a
written notice setting out those matters.
57GM
Copy of security notice to be given to Secretaries
The Minister must give a copy of a
security notice to:
(a) the Secretary of the Department;
and
(b) the Secretary of the Human
Services Department.
57GN
Period security notice is in force
A security notice comes into force on
the day it is given to the Minister, and remains in force until it is revoked.
57GNA
Annual review of security notice
Before the end of the following periods,
the Attorney‑General must consider whether to revoke a security notice (if it
has not already been revoked):
(a) 12 months after it came into
force;
(b) 12 months after the Attorney‑General
last considered whether to revoke it.
57GO
Revoking a security notice
(1) The Attorney‑General may, by written
notice given to the Minister, revoke a security notice.
(2) The revocation takes effect on the day it
is made.
(3) The Minister must give a copy of a notice
under subsection (1) to:
(a) the Secretary of the Department;
and
(b) the Secretary of the Human
Services Department.
(4) If:
(a) a determination in relation to an
individual ceases to be in force because of subsection 57GI(2); and
(b) the Attorney‑General revokes the
security notice concerned;
the Secretary of the Department must cause reasonable
steps to be taken to notify the individual of the revocation.
57GP
Notices may contain personal information
A notice under this Division in relation
to an individual may contain personal information about the individual.
57GQ
This Division does not apply to child care benefit or child care rebate
This Division does not apply in relation
to child care benefit or child care rebate.
57GR
Certain decisions not decisions of officers
For the purposes of Part 5 of the
Family Assistance Administration Act, the following decisions are taken not to
be decisions of an officer under the family assistance law:
(a) any decision under this Division;
(b) any decision under Part 8B of
that Act to pay, or not to pay, an amount of family assistance as mentioned in
subsection 57GI(4) of this Act;
(c) any decision under Part 8B of
that Act that is related to a decision mentioned in paragraph (b).
57GS
Instruments not legislative instruments
The following are not legislative instruments:
(a) a notice under this Division;
(b) a direction under subsection 57GI(6).
Paid Parental Leave Act 2010
3 Section 6
Insert:
Attorney‑General’s Secretary means the
Secretary of the Department administered by the Minister administering the Australian
Security Intelligence Organisation Act 1979.
Foreign Affairs Minister means the Minister
administering the Australian Passports Act 2005.
Human Services Secretary means the Secretary
of the Department administered by the Minister administering the Human
Services (Centrelink) Act 1997.
Immigration Minister means the Minister
administering the Migration Act 1958.
security notice means a notice under section 278C.
4 At the end of Part 6‑1
Add:
Division 5—Loss of parental leave pay or dad and partner pay for persons
on security grounds
278A
Simplified outline of this Division
Persons who might prejudice the
security of Australia or a foreign country may lose parental leave pay or dad
and partner pay.
278B
Loss of parental leave pay or dad and partner pay for persons on security
grounds
(1) If a security notice is given to the
Minister in relation to a person, then while the notice is in force:
(a) no parental leave pay or dad and
partner pay is to be paid to the person; and
(b) the person is not eligible for
parental leave pay or dad and partner pay; and
(c) parental leave pay or dad and
partner pay is not payable to the person.
Note: A security notice is a notice under section 278C.
(2) If:
(a) a security notice is given to the
Minister in relation to a person; and
(b) a payability determination that
parental leave pay or dad and partner pay is payable to the person is in force
at the end of the day (the relevant day) before the day the
notice is given; and
(c) the day the notice is given is in
the person’s PPL period, or DAPP period, that is specified in that
determination;
then that determination is taken to be varied so that the
person’s PPL period or DAPP period, as the case requires, ends at the end of
the relevant day.
(3) If a security notice given to the
Minister in relation to a person ceases to be in force, then for any day while
the notice was in force:
(a) the person is not eligible for
parental leave pay or dad and partner pay; and
(b) parental leave pay or dad and
partner pay is not payable to the person.
(4) Subsections (1) to (3) have effect
despite any other provision of this Act.
(5) If a payability determination for a
person is varied by subsection (2), the Secretary must cause reasonable
steps to be taken to notify the person of the variation.
278C
Security notice from Attorney‑General
(1) The Attorney‑General may give the
Minister a written notice requiring that this Division apply in relation to a
specified person if:
(a) the Foreign Affairs Minister gives
the Attorney‑General a notice under section 278D in relation to the
person; or
(b) the Immigration Minister gives the
Attorney‑General a notice under section 278E in relation to the person.
(2) Before giving a notice under this
section, the Attorney‑General must have regard to the following:
(a) the extent (if any) that any
payments of parental leave pay or dad and partner pay of the person are being,
or may be, used for a purpose that might prejudice the security of Australia or
a foreign country, if the Attorney‑General is aware of that extent;
(b) the likely effect of the operation
of section 278B on the person’s dependants, if the Attorney‑General is
aware of those dependants.
(3) The Attorney‑General’s Secretary must:
(a) seek the advice of the Human
Services Secretary in relation to paragraph (2)(b); and
(b) inform the Attorney‑General of
that advice.
(4) Subsection (2) does not limit the
matters to which regard may be had.
278D
Notice from Foreign Affairs Minister
If:
(a) either:
(i) under subsection 14(2)
of the Australian Passports Act 2005, the Foreign Affairs Minister
refuses to issue a person an Australian passport; or
(ii) under section 22
of that Act, the Foreign Affairs Minister cancels a person’s Australian
passport; and
(b) the refusal or cancellation was
because of a refusal/cancellation request made in relation to the person under
subsection 14(1) of that Act; and
(c) the request was made on the basis
of the circumstance mentioned in subparagraph 14(1)(a)(i) of that Act;
the Foreign Affairs Minister may give the Attorney‑General
a written notice setting out those matters.
278E
Notice from Immigration Minister
If:
(a) the Immigration Minister cancels a
person’s visa under section 116 or 128 of the Migration Act 1958
because of an assessment by the Australian Security Intelligence Organisation
that the person is directly or indirectly a risk to security (within the
meaning of section 4 of the Australian Security Intelligence
Organisation Act 1979); or
(b) the Immigration Minister cancels a
person’s visa under section 134B of the Migration Act 1958
(emergency cancellation on security grounds) and decides not to revoke that
cancellation under subsection 134C(3) of that Act; or
(c) the Immigration Minister cancels a
person’s visa under section 501 of the Migration Act 1958 and there
is an assessment by the Australian Security Intelligence Organisation that the
person is directly or indirectly a risk to security (within the meaning of
section 4 of the Australian Security Intelligence Organisation Act 1979);
the Immigration Minister may give the Attorney‑General a
written notice setting out those matters.
278F
Copy of security notice to be given to Secretaries
The Minister must give a copy of a
security notice to:
(a) the Secretary of the Department;
and
(b) the Secretary of the Human
Services Department.
278G
Period security notice is in force
A security notice comes into force on
the day it is given to the Minister, and remains in force until it is revoked.
278GA
Annual review of security notice
Before the end of the following periods,
the Attorney‑General must consider whether to revoke a security notice (if it
has not already been revoked):
(a) 12 months after it came into
force;
(b) 12 months after the Attorney‑General
last considered whether to revoke it.
278H
Revoking a security notice
(1) The Attorney‑General may, by written
notice given to the Minister, revoke a security notice.
(2) The revocation takes effect on the day it
is made.
(3) The Minister must give a copy of a notice
under subsection (1) to:
(a) the Secretary of the Department;
and
(b) the Secretary of the Human
Services Department.
(4) If:
(a) a payability determination for a
person is varied by subsection 278B(2); and
(b) the Attorney‑General revokes the
security notice concerned;
the Secretary of the Department must cause reasonable
steps to be taken to notify the person of the revocation.
278J
Notices may contain personal information
A notice under this Division in relation
to a person may contain personal information (within the meaning of the Privacy
Act 1988) about the person.
278K
Decisions under Division not decisions of officers
For the purposes of Chapter 5, a
decision under this Division is taken not to be a decision of an officer under
this Act.
278L
Notices not legislative instruments
A notice under this Division is not a
legislative instrument.
Social Security Act 1991
5 Subsection 23(1)
Insert:
Attorney‑General’s Secretary means the
Secretary of the Department administered by the Minister administering the Australian
Security Intelligence Organisation Act 1979.
Foreign Affairs Minister means the Minister
administering the Australian Passports Act 2005.
Human Services Secretary means the Secretary
of the Department administered by the Minister administering the Human
Services (Centrelink) Act 1997.
Immigration Minister means the Minister
administering the Migration Act 1958.
security notice means a notice under section 38N.
6 After Part 1.3A of Chapter 1
Insert:
Part 1.3B—Loss of social security payments and concessions for persons
on security grounds
38L
Simplified outline of this Part
Persons who might prejudice the
security of Australia or a foreign country may lose social security payments or
concession cards.
38M
Loss of social security payments and concessions for persons on security
grounds
(1) If a security notice is given to the
Minister in relation to a person, then while the notice is in force:
(a) no social security payment is to
be paid to the person; and
(b) the person is not qualified for a
social security payment; and
(c) a social security payment is not
payable to the person; and
(d) the person is not qualified for a
concession card.
Note: A security notice is a notice under section 38N.
(2) If a security notice is given to the
Minister in relation to a person, then any social security payment of the
person is cancelled on the day the notice comes into force.
(3) If a security notice is given to the
Minister in relation to a person, then any concession card the person holds is
cancelled on the day the notice comes into force.
(4) If a security notice given to the
Minister in relation to a person ceases to be in force, then for any day while
the notice was in force:
(a) the person is not qualified for a
social security payment; and
(b) a social security payment is not
payable to the person; and
(c) the person is not qualified for a
concession card.
(5) Subsections (1) to (4) have effect
despite any other provision of the social security law.
(6) If a person’s social security payment is
cancelled by subsection (2), or a person’s concession card is cancelled by
subsection (3), the Secretary must cause reasonable steps to be taken to
notify the person of the cancellation.
38N
Security notice from Attorney‑General
(1) The Attorney‑General may give the
Minister a written notice requiring that this Part apply in relation to a
specified person if:
(a) the Foreign Affairs Minister gives
the Attorney‑General a notice under section 38P in relation to the person;
or
(b) the Immigration Minister gives the
Attorney‑General a notice under section 38Q in relation to the person.
(2) Before giving a notice under this
section, the Attorney‑General must have regard to the following:
(a) the extent (if any) that any
social security payments of the person are being, or may be, used for a purpose
that might prejudice the security of Australia or a foreign country, if the
Attorney‑General is aware of that extent;
(b) the likely effect of the operation
of section 38M on the person’s dependants, if the Attorney‑General is
aware of those dependants.
(3) The Attorney‑General’s Secretary must:
(a) seek the advice of the Human
Services Secretary in relation to paragraph (2)(b); and
(b) inform the Attorney‑General of
that advice.
(4) Subsection (2) does not limit the
matters to which regard may be had.
38P
Notice from Foreign Affairs Minister
If:
(a) either:
(i) under subsection 14(2)
of the Australian Passports Act 2005, the Foreign Affairs Minister
refuses to issue a person an Australian passport; or
(ii) under section 22
of that Act, the Foreign Affairs Minister cancels a person’s Australian
passport; and
(b) the refusal or cancellation was
because of a refusal/cancellation request made in relation to the person under
subsection 14(1) of that Act; and
(c) the request was made on the basis
of the circumstance mentioned in subparagraph 14(1)(a)(i) of that Act;
the Foreign Affairs Minister may give the Attorney‑General
a written notice setting out those matters.
38Q
Notice from Immigration Minister
If:
(a) the Immigration Minister cancels a
person’s visa under section 116 or 128 of the Migration Act 1958
because of an assessment by the Australian Security Intelligence Organisation
that the person is directly or indirectly a risk to security (within the
meaning of section 4 of the Australian Security Intelligence
Organisation Act 1979); or
(b) the Immigration Minister cancels a
person’s visa under section 134B of the Migration Act 1958
(emergency cancellation on security grounds) and decides not to revoke that
cancellation under subsection 134C(3) of that Act; or
(c) the Immigration Minister cancels a
person’s visa under section 501 of the Migration Act 1958 and there
is an assessment by the Australian Security Intelligence Organisation that the
person is directly or indirectly a risk to security (within the meaning of
section 4 of the Australian Security Intelligence Organisation Act 1979);
the Immigration Minister may give the Attorney‑General a
written notice setting out those matters.
38R
Copy of security notice to be given to Secretaries
The Minister must give a copy of a
security notice to:
(a) the Secretary of the Department;
and
(b) the Secretary of the Human
Services Department.
38S
Period security notice is in force
A security notice comes into force on
the day it is given to the Minister, and remains in force until it is revoked.
38SA
Annual review of security notice
Before the end of the following periods,
the Attorney‑General must consider whether to revoke a security notice (if it
has not already been revoked):
(a) 12 months after it came into
force;
(b) 12 months after the Attorney‑General
last considered whether to revoke it.
38T
Revoking a security notice
(1) The Attorney‑General may, by written
notice given to the Minister, revoke a security notice.
(2) The revocation takes effect on the day it
is made.
(3) The Minister must give a copy of a notice
under subsection (1) to:
(a) the Secretary of the Department;
and
(b) the Secretary of the Human
Services Department.
(4) If:
(a) a person’s social security payment
is cancelled by subsection 38M(2) or a person’s concession card is
cancelled by subsection 38M(3); and
(b) the Attorney‑General revokes the
security notice concerned;
the Secretary of the Department must cause reasonable
steps to be taken to notify the person of the revocation.
38U
Notices may contain personal information
A notice under this Part in relation to
a person may contain personal information (within the meaning of the Privacy
Act 1988) about the person.
38V
Decisions under Part not decisions of officers
For the purposes of Part 4 of the
Administration Act, a decision under this Part is taken not to be a decision of
an officer under the social security law.
38W
Notices not legislative instruments
A notice under this Part is not a
legislative instrument.
Social Security (Administration) Act
1999
7 Before paragraph 123(1)(c)
Insert:
(ba) the payment is cancelled by section 38M
of the 1991 Act; or
Part 3—Application
provisions
9 Application provisions
Affected payments and concessions
(1) Section 57GI of the A New Tax System (Family
Assistance) Act 1999, as inserted by this Act, applies in relation to
family assistance of an individual, whether the individual became eligible for
that assistance before, on or after the commencement of this item.
(2) Section 278B of the Paid Parental Leave Act
2010, as inserted by this Act, applies in relation to parental leave pay or
dad and partner pay of a person, whether the person became eligible for that
pay before, on or after the commencement of this item.
(3) Section 38M of the Social Security Act 1991,
as inserted by this Act, applies in relation to the following:
(a) a social security payment of a
person, whether the person qualified for that payment before, on or after the
commencement of this item;
(b) a concession card of a person,
whether that card was issued before, on or after the commencement of this item.
Ministerial notices
(4) Paragraph 57GK(a) of the A New Tax System (Family
Assistance) Act 1999, paragraph 278D(a) of the Paid Parental Leave
Act 2010 and paragraph 38P(a) of the Social Security Act 1991,
as inserted by this Act, apply in relation to the refusal to issue, or the
cancellation of, a passport before, on or after the commencement of this item.
(5) Paragraphs 57GL(a) and (c) of the A New Tax
System (Family Assistance) Act 1999, paragraphs 278E(a) and (c) of the Paid
Parental Leave Act 2010 and paragraphs 38Q(a) and (c) of the Social
Security Act 1991, as inserted by this Act, apply in relation to the
cancellation of a visa, or an assessment made, before, on or after the commencement
of this item.
Schedule 3—Customs’
detention powers
Customs Act 1901
1 Section 219ZJA
Insert:
national security has the same meaning as in
the National Security Information (Criminal and Civil Proceedings) Act 2004.
2 Section 219ZJA (definition of serious Commonwealth
offence)
Repeal the definition, substitute:
serious Commonwealth offence means an offence
against a law of the Commonwealth that is punishable on conviction by
imprisonment for 12 months or more.
3 Paragraph 219ZJB(1)(b)
Omit “or is committing,”, substitute “is committing or intends to
commit”.
4 Subsection 219ZJB(3)
Omit “delivered, as soon as practicable, into the custody of”,
substitute “made available, as soon as practicable, to”.
5 Subsection 219ZJB(4)
Omit “or was committing,”, substitute “was committing or was
intending to commit”.
6 Subsection 219ZJB(5)
Omit “45 minutes”, substitute “2 hours”.
7 Paragraphs 219ZJB(7)(a) and 219ZJC(6)(a)
After “safeguard”, insert “national security, the security of a
foreign country or”.
8 At the end of Subdivision B of Division 1BA of Part XII
Add:
219ZJCA
Detention of person for national security or security of a foreign country
(1) An officer may detain a person if:
(a) the person is in a designated
place; and
(b) the officer is satisfied on
reasonable grounds that the person is, or is likely to be, involved in an
activity that is a threat to national security or the security of a foreign
country.
(2) An officer who is detaining a person
under this section must (subject to subsection (3)) ensure that the person
is made available, as soon as practicable, to a police officer in person to be
dealt with according to law.
(3) An officer who is detaining a person
under this section must release the person from that detention immediately if:
(a) the officer ceases to be satisfied
on reasonable grounds that the person is, or is likely to be, involved in an
activity that is a threat to national security or the security of a foreign
country; or
(b) the person is made available to a police
officer under subsection (2); or
(c) a police officer indicates that
the police force to which the police officer belongs has no interest in the
person.
(4) Subject to subsection (6), if a
person is detained under this section for more than 2
hours, an officer who is detaining the person under this section must
inform the person of the right of the person to have a family member or another
person notified of the person’s detention.
(5) Where a person detained under this
section wishes to have a family member or another person notified of the person’s
detention, the officer must take all reasonable steps to notify the family
member or the other person.
(6) An officer who is detaining the person
under this section may refuse to notify a family member or another person of
the person’s detention if the officer believes on reasonable grounds that such
notification should not be made in order to:
(a) safeguard national security, the
security of a foreign country or the processes of law enforcement; or
(b) protect the life and safety of any
person.
Note: In relation to references in this section to
family member, see also section 4AAA.
9 At the end of subsection 219ZJD(1)
Add:
; or (e) in the case of a person detained
under section 219ZJCA—preventing the concealment, loss or destruction of
material of interest for national security or the security of a foreign country.
10 At the end of paragraph 219ZJD(3)(b)
Add:
; or (iv) that is of interest for
national security or the security of a foreign country.
11 Subsection 219ZJD(4)
Repeal the subsection, substitute:
(4) An officer who seizes a weapon or other
thing under subsection (3) must ensure that it is made available to:
(a) the police officer to whom the
person is made available under subsection 219ZJB(3) or 219ZJCA(2); or
(b) the police officer into whose
custody the person is delivered under subsection 219ZJC(3).
12 Subsection 219ZJF(1)
Omit “this Division”, substitute “section 219ZJB or 219ZJC”.
13 Subparagraph 219ZJJ(1)(b)(iv)
After “detention”, insert “, unless the minor is detained under
section 219ZJCA”.
14 Paragraph 219ZJJ(2)(a)
After “safeguard”, insert “national security, the security of a
foreign country or”.
Schedule 4—Cancelling
visas on security grounds
Part 1—Amendment of the Migration Act 1958
Division 1—Amendments
1 Subsection 5(1)
Insert:
ASIO means the Australian Security
Intelligence Organisation.
ASIO Act means the Australian Security
Intelligence Organisation Act 1979.
assessment, in relation to ASIO, has the same
meaning as in subsection 35(1) of the ASIO Act.
2 Subsection 33(10)
Before “and H”, insert “, FB”.
3 Before paragraph 118(d)
Insert:
(cc) section 134B (emergency
cancellation on security grounds); or
4 Before Subdivision G of Division 3 of Part 2
Insert:
Subdivision FB—Emergency cancellation on security grounds
134A
Natural justice
The rules of natural justice do not
apply to a decision made under this Subdivision.
134B
Emergency cancellation on security grounds
The Minister must cancel a visa held by
a person if:
(a) there is an assessment made by
ASIO for the purposes of this section; and
(b) the assessment contains advice
that ASIO suspects that the person might be, directly or indirectly, a risk to
security (within the meaning of section 4 of the ASIO Act); and
(c) the assessment contains a
recommendation that all visas held by the person be cancelled under this
section; and
(d) the person is outside Australia.
134C
Decision about revocation of emergency cancellation
Application of section
(1) This section applies to a visa that is
cancelled under section 134B.
First ground to revoke cancellation
(2) The Minister must revoke the cancellation
of the visa as soon as reasonably practicable after the end of the period
referred to in subsection (5).
(3) However, the Minister must not revoke the
cancellation under subsection (2) if:
(a) there is an assessment made by
ASIO for the purposes of this section before the end of the period referred to
in subsection (5); and
(b) the assessment contains advice
that the former holder of the visa is, directly or indirectly, a risk to
security (within the meaning of section 4 of the ASIO Act); and
(c) the assessment contains a
recommendation that the cancellation not be revoked under subsection (2).
Second ground to revoke cancellation
(4) If:
(a) there is an assessment made by
ASIO for the purposes of this section before the end of the period referred to
in subsection (5); and
(b) the assessment contains a
recommendation that the cancellation of the visa be revoked under this
subsection;
then the Minister must revoke the cancellation as soon as
reasonably practicable after the assessment is made.
Period
(5) For the purposes of subsections (2),
(3) and (4), the period is the period that:
(a) starts at the beginning of the day
(the cancellation day) the visa is cancelled; and
(b) ends at the end of the 28th day
after the cancellation day.
134D
Effect of revocation of cancellation
(1) If the cancellation of a visa is revoked
under section 134C, then, without limiting its operation before
cancellation, it has effect as if it were granted on the revocation.
(2) However, the Minister may vary:
(a) the time the visa is to be in
effect; or
(b) any period in which, or date until
which, the visa permits its holder to travel to, enter and remain in Australia,
or to remain in Australia.
134E
Notice of cancellation
(1) If:
(a) the Minister decides under section 134B
to cancel a visa; and
(b) the Minister decides under
subsection 134C(3) not to revoke the cancellation;
then the Minister must give the former holder of the visa
notice of the cancellation.
(2) The notice must be given:
(a) if the assessment made by ASIO for
the purposes of section 134C contains an advice that it is essential to
the security of the nation that a notice is not given to the person under this
section—as soon as reasonably practicable after ASIO advises the Minister, in
writing, that it is no longer essential to the security of the nation for the
notice not to be given; and
(b) otherwise—as soon as reasonably
practicable after the Minister decides under subsection 134C(3) not to
revoke the cancellation.
(3) The notice must:
(a) state that the visa was cancelled
under section 134B; and
(b) be given to the person in the
prescribed way.
(4) Failure to give the notice does not
affect the validity of either:
(a) the decision under section 134B
to cancel the visa; or
(b) the decision under subsection 134C(3)
not to revoke the cancellation.
134F
Effect of cancellation on other visas
(1) This section applies if:
(a) a visa held by a person (the relevant
person) is cancelled under section 134B; and
(b) the Minister decides under
subsection 134C(3) not to revoke the cancellation; and
(c) the Minister has given a notice to
the relevant person under section 134E about the cancellation.
(2) If another person holds a visa only
because the relevant person held a visa, then the Minister may, without notice
to the other person, cancel the other person’s visa.
Division 2—Application of amendments
made by Part 1
5 Application of amendments made by Part 1
The amendments made by Part 1 of this Schedule apply in
relation to visas granted before, on or after that commencement.
Part 2—Amendment of
the Australian Security Intelligence Organisation Act 1979
6 Section 36
Before “This Part”, insert “(1)”.
7 At the end of section 36
Add:
(2) Despite paragraph (1)(b), this Part
applies to a security assessment in respect of a person if:
(a) the person was the holder of a
valid permanent visa; and
(b) the visa was cancelled under
section 134B of the Migration Act 1958; and
(c) the security assessment is made
for the purposes of section 134C of that Act in relation to that
cancellation.
Schedule 5—Identifying
persons in immigration clearance
Part 1—Amendment of the Migration Act 1958
1 Paragraph 5A(3)(g)
Repeal the paragraph, substitute:
(g) to enhance the Department’s
ability to identify non‑citizens who have a criminal history or who are of
character concern; and
(ga) to assist in identifying persons
who may be a security concern to Australia or a foreign country; and
2 Part 2 (heading)
Repeal the heading, substitute:
Part 2—Arrival, presence
and departure of persons
3 Paragraph 166(1)(c)
Repeal the paragraph, substitute:
(c) comply with any requirement, made
by a clearance officer before an event referred to in subparagraph 172(1)(a)(iii)
or (b)(iii) or paragraph 172(1)(c) occurs, to provide one or more personal
identifiers referred to in subsection (5) to a clearance authority; and
(d) if under paragraph (a) the
person presents evidence to an authorised system—provide to the authorised
system a photograph or other image of the person’s face and shoulders.
4 Subsection 166(2)
Omit “present evidence, or provide information,”, substitute “present
or provide evidence, information or personal identifiers”.
5 Subparagraph 166(2)(c)(i)
Omit “neither the system nor a clearance officer requires”,
substitute “a clearance officer does not require”.
6 Subsection 166(3) (heading)
Repeal the heading, substitute:
Complying with paragraphs (1)(a) and (b)
7 Before subsection 166(5)
Insert:
Personal identifiers provided under paragraph (1)(c)
8 Subsection 166(5)
Omit “paragraphs (1)(a) and (c), a person may only be
required to present or”, substitute “paragraph (1)(c), a person may only
be required to”.
9 Paragraph 166(5)(c)
After “identifier”, insert “of a type”.
10 Subsection 166(6)
Repeal the subsection.
11 Subsection 166(7)
Repeal the subsection, substitute:
(7) A person is taken not to have complied
with a requirement to provide a personal identifier under paragraph (1)(c)
or (d) unless the personal identifier is provided by way of one or more
identification tests carried out by an authorised officer or authorised system.
12 Subsection 166(8)
Omit “non‑citizen”, substitute “person”.
13 Paragraph 166(8)(a)
After “authorised officer”, insert “or authorised system”.
14 Paragraphs 170(1)(a) and (b)
Omit “the officer or an authorised system”, substitute “a
clearance authority”.
15 At the end of subsection 170(1)
Add:
; and (c) to comply with any requirement made
by a clearance officer to provide one or more personal identifiers referred to
in subsection (2A) to a clearance authority; and
(d) if under paragraph (a) the
person presents evidence to an authorised system—to provide to the authorised
system a photograph or other image of the person’s face and shoulders.
16 Subsection 170(2)
Repeal the subsection, substitute:
Complying with subsection (1)
(2) A person is to comply with subsection (1)
in a prescribed way.
17 Subsection 170(2AA)
Omit “present evidence, or provide information,”, substitute
“present or provide evidence, information or personal identifiers”.
18 Subparagraph 170(2AA)(c)(i)
Omit “neither the system nor a clearance officer requires the
person to present or provide evidence, information or personal identifiers
referred to in subsection (1) or (2)”, substitute “a clearance officer
does not require the person to present or provide evidence, information or
personal identifiers referred to in subsection (1)”.
19 Subsection 170(2A) (heading)
Repeal the heading, substitute:
Personal identifiers provided under paragraph (1)(c)
20 Subsection 170(2A)
Omit “paragraph (1)(a) and subsection (2), a person may
only be required to present or”, substitute “paragraph (1)(c), a person
may only be required to”.
21 Paragraph 170(2A)(c)
After “identifier”, insert “of a type”.
22 Subsection 170(3)
Repeal the subsection.
23 Subsection 170(4)
Repeal the subsection, substitute:
(4) A person is taken not to have complied
with a requirement to provide a personal identifier under paragraph (1)(c)
or (d) unless the personal identifier is provided by way of one or more
identification tests carried out by an authorised officer or authorised system.
24 Subsection 170(5)
Omit “non‑citizen”, substitute “person”.
25 Paragraph 170(5)(a)
After “an authorised officer”, insert “or authorised system”.
26 Subsection 175(1)
Omit “to leave Australia (whether or not after calling at places
in Australia)”, substitute “due to depart from a place in Australia to a place
outside Australia (whether or not after calling at other places in Australia)”.
27 Paragraphs 175(1)(a) and (b)
Omit “the officer or an authorised system”, substitute “a
clearance authority”.
28 At the end of subsection 175(1)
Add:
; and (c) comply with any requirement made by
a clearance officer to provide one or more personal identifiers referred to in subsection (2A)
to a clearance authority; and
(d) if under paragraph (a) the
person presents evidence to an authorised system—provide to the authorised
system a photograph or other image of the person’s face and shoulders.
29 Subsection 175(2)
Repeal the subsection, substitute:
Complying with subsection (1)
(2) A person is to comply with subsection (1)
in a prescribed way.
30 Subsection 175(2AA)
Omit “present evidence, or provide information,”, substitute
“present or provide evidence, information or personal identifiers”.
31 Subparagraph 175(2AA)(c)(i)
Omit “neither the system nor a clearance officer requires the
person to present or provide evidence, information or personal identifiers
referred to in subsection (1) or (2)”, substitute “a clearance officer
does not require the person to present or provide evidence, information or
personal identifiers referred to in subsection (1)”.
32 Subsection 175(2A) (heading)
Repeal the heading, substitute:
Personal identifiers provided under paragraph (1)(c)
33 Subsection 175(2A)
Omit “paragraph (1)(a) and subsection (2), a person may
only be required to present or”, substitute “paragraph (1)(c), a person
may only be required to”.
34 Paragraph 175(2A)(c)
After “identifier”, insert “of a type”.
35 Subsection 175(3)
Repeal the subsection.
36 Subsection 175(4)
Repeal the subsection, substitute:
(4) A person is taken not to have complied
with a requirement to provide a personal identifier under paragraph (1)(c)
or (d) unless the personal identifier is provided by way of one or more
identification tests carried out by an authorised officer or authorised system.
37 Subsection 175(5)
Omit “non‑citizen”, substitute “person”.
38 Paragraph 175(5)(a)
After “an authorised officer”, insert “or authorised system”.
39 At the end of Division 5 of Part 2
Add:
175B
Collection, access and disclosure of information
Collection of information
(1) If a person presents or provides a
document to a clearance authority under this Division, the clearance authority
may collect information (including personal identifiers) in the document.
Access to, and disclosure of, personal information
(2) The following provisions:
(a) section 336D (which
authorises access to identifying information);
(b) section 336E (other than
subsection 336E(1)) and section 336F (which authorise disclosure of
identifying information);
(c) a provision of an instrument made
under section 336D or 336F;
apply to personal information (other than personal
identifiers) collected under this Division in the same way as they apply to
identifying information.
Effect on interpretation
(3) This section does not, by implication,
affect the interpretation of any other provision of this Act or an instrument
made under this Act.
40 Section 258
Omit “non‑citizens” (wherever occurring), substitute “persons”.
41 Section 258A (heading)
Repeal the heading, substitute:
258A
When person cannot be required to provide personal identifier
42 Subsection 258B(1)
Omit “carrying out an identification test on a non‑citizen”,
substitute “an authorised officer carries out an identification test on a person”.
43 Paragraphs 258B(1)(a) and (b)
Omit “the non‑citizen” (wherever occurring), substitute “the person”.
44 Subsections 258B(2) and (3)
Omit “non‑citizen” (wherever occurring), substitute “person”.
45 Section 258C (heading)
Repeal the heading, substitute:
258C
Information to be provided when identification tests not carried out
46 Section 258C
Omit “non‑citizen” (wherever occurring), substitute “person”.
47 Subsection 258D(1)
Omit “the authorised officer is to carry out identification tests
on the non‑citizen”, substitute “an identification test is to be carried out on
a person”.
48 Subsection 258D(2)
Omit “non‑citizen”, substitute “person”.
49 Subsection 258D(2)
Omit “carried out by an authorised officer”.
50 Paragraphs 258E(a) and (e)
Omit “non‑citizen”, substitute “person”.
51 Subsection 261AL(1)
Omit “non‑citizen”, substitute “person”.
52 Paragraphs 261AL(1)(a) and (b)
Omit “non‑citizen’s” (wherever occurring), substitute “person’s”.
53 Subsection 261AL(5)
Omit “non‑citizen”, substitute “person”.
54 Subsection 261AM(1)
Omit “non‑citizen”, substitute “person”.
55 Paragraphs 261AM(1)(a) and (b)
Omit “non‑citizen’s” (wherever occurring), substitute “person’s”.
56 Subsection 261AM(4)
Omit “non‑citizen”, substitute “person”.
57 Paragraph 336D(2)(g)
Repeal the paragraph, substitute:
(g) the purposes of:
(i) this Act or an
instrument made under this Act; or
(ii) the Australian
Citizenship Act 2007 or an instrument made under that Act; or
(iii) the Customs Act
1901 or an instrument made under that Act; or
(iv) any other law of the
Commonwealth prescribed by the regulations;
58 Subparagraph 336E(2)(a)(iii)
Repeal the subparagraph, substitute:
(iii) identify non‑citizens
who have a criminal history or who are of character concern; or
(iiia) identify persons who
may be a security concern to Australia or a foreign country; or
59 After paragraph 336E(2)(b)
Insert:
(ba) is for the purpose of:
(i) this Act or an
instrument made under this Act; or
(ii) the Australian
Citizenship Act 2007 or an instrument made under that Act; or
(iii) the Customs Act
1901 or an instrument made under that Act; or
(iv) any other law of the
Commonwealth prescribed by the regulations; or
60 After paragraph 366E(2)(eb)
Insert:
(ec) is for the purpose of identifying
non‑citizens who have a criminal history or who are of character concern; or
(ed) is for the purpose of identifying
persons who may be a security concern to Australia or a foreign country; or
Part 2—Application of
amendments
61 Application of amendments
(1) The amendment made by item 1 of this Schedule,
as it affects section 336A, 336D or 336F of the Migration Act 1958,
applies in relation to personal identifiers and personal information provided
before or after the commencement of this Schedule.
(2) The amendment made by item 39 of this Schedule
applies in relation to:
(a) documents presented or provided;
or
(b) personal information provided;
before or after the commencement of this Schedule.
(3) The amendments made by items 57 to 60 apply in
relation to personal identifiers and personal information provided before or
after the commencement of this Schedule.
(4) If:
(a) an instrument was made for the
purposes of a provision of the Migration Act 1958; and
(b) the instrument was in force
immediately before the commencement of this Schedule; and
(c) the provision is amended by this
Schedule;
then the instrument continues in force (and may be dealt with) as
if it were made for the purposes of that provision as amended.
Schedule 6—Identifying
persons entering or leaving Australia through advance passenger processing
Part 1—Amendment of the Migration Act 1958
Division 1—Amendments
1 Paragraph 5A(3)(c)
Omit “, including passenger processing at Australia’s border”.
2 After paragraph 5A(3)(c)
Insert:
(ca) to improve passenger processing at
Australia’s border; and
3 Paragraph 245I(2)(b)
After “voyage to”, insert “or from”.
4 Subsections 245J(3) and 245K(2)
After “information”, insert “(including personal identifiers)”.
5 Section 245L (heading)
Repeal the heading, substitute:
245L
Obligation to report on persons arriving in Australia
6 Subsection 245L(1)
Omit “an airport or port”, substitute “a place”.
7 Paragraphs 245L(2)(a) and (b)
Omit “airport or port”, substitute “place in Australia”.
8 Subsection 245L(2) (note 1)
Omit “(and the obligation in subsection (6))”.
9 Paragraphs 245L(4)(a) and (b)
Omit “airport” (wherever occurring), substitute “place”.
10 Paragraphs 245L(5)(a) and (b)
After “arrival”, insert “at the place in Australia”.
11 Subsections 245L(6) and (7)
Repeal the subsections.
12 After section 245L
Insert:
245LA
Obligation to report on persons departing from Australia
Aircraft and ships to which section applies
(1) This section applies to an aircraft or
ship of a kind to which this Division applies that is due to depart from a
place in Australia on a flight or voyage to a place outside Australia (whether
or not after calling at other places in Australia).
Obligation to report on passengers and crew
(2) The operator of the aircraft or ship
must, in accordance with this section:
(a) report to the Department, using
the approved primary reporting system for passengers, on each passenger who is
on, or is expected to be on, the flight or voyage (including any part of the
flight or voyage); and
(b) report to the Department, using
the approved primary reporting system for crew, on each member of the crew who
is on, or is expected to be on, the flight or voyage (including any part of the
flight or voyage).
Note 1: This obligation must be complied with even if
the information concerned is personal information.
Note 2: Section 245N contains an offence for
failure to comply with this subsection.
(3) However, if:
(a) on the flight or voyage, the
aircraft or ship calls at one or more places in Australia before departing to
the place outside Australia; and
(b) the regulations prescribe that a
report under subsection (2) must only relate to the part of the flight or
voyage that is from the last place in Australia to the place outside Australia;
then the report must be on each passenger or crew member
who is on, or is expected to be on, that part of the flight or voyage.
Information to be reported
(4) A report on a passenger or crew member
under subsection (2) must include the information relating to the
passenger or crew member that is specified, as mentioned in subsection 245J(3),
in relation to the relevant approved primary reporting system.
Deadline for providing a report
(5) A report on a passenger or crew member
under subsection (2) must be provided:
(a) if the regulations prescribe a
period or periods before the aircraft’s or ship’s departure from a place for
the giving of a report under subsection (2) in relation to the passenger
or crew member—not later than the start of that period or each of those
periods; and
(b) if the regulations prescribe an
event or events for the giving of a report under subsection (2) in
relation to the passenger or crew member—at the time of that event or each of
those events; and
(c) if the regulations prescribe a
time or times for the giving of a report under subsection (2) in relation
to the passenger or crew member—at that time or each of those times.
(6) To avoid doubt, more than one report may
be required to be provided under subsection (2) in relation to a passenger
or crew member.
Note: For example, if regulations made for the
purposes of subsection (5) prescribe a period of 48 hours before the
aircraft’s or ship’s departure from a place on the flight or voyage and also
prescribe an event of the passenger or crew member checking‑in for the flight
or voyage, then 2 reports would be required to be provided under this section
in relation to the passenger or crew member.
13 Before section 245M
Insert:
245LB
Dealing with information collected under this Division etc.
Collection of personal information
(1) The Department may collect information
(including personal identifiers) in a report provided under this Division.
Access to, and disclosure of, personal information
(2) The following provisions:
(a) section 336D (which
authorises access to identifying information);
(b) section 336E (other than
subsection 336E(1)) and section 336F (which authorise disclosure of
identifying information);
(c) a provision of an instrument made
under section 336D or 336F;
apply to personal information (other than personal
identifiers) collected under this Division, or under subsection 64ACA(11)
or 64ACB(8) of the Customs Act 1901, in the same way as they
apply to identifying information.
(3) As soon as practicable after information
is reported under section 245L or 245LA, the Department must disclose the
information (including personal identifiers) to the Australian Customs and
Border Protection Service.
Effect on interpretation
(4) This section does not, by implication,
affect the interpretation of any other provision of this Act or an instrument
made under this Act.
14 Subsection 245M(2)
Omit “Section 245L applies”, substitute “Sections 245L
and 245LA apply”.
15 Paragraph 245M(2)(a)
Omit “paragraph 245L(2)(a) or (b)”, substitute “subsections 245L(2)
and 245LA(2)”.
16 Paragraph 245M(2)(b)
Omit “subsection 245L(3)”, substitute “subsections 245L(3)
and 245LA(4)”.
17 Subsections 245N(1), (2) and (4)
After “245L(2)”, insert “or 245LA(2)”.
Division 2—Application of
amendments made by Part 1
18 Application of amendments made by Part 1
Access and disclosure of identifying information etc.
(1) The amendments made by items 1 and 2 of this
Schedule, as they affect section 336A, 336D or 336F of the Migration
Act 1958, apply in relation to personal identifiers and personal
information provided before, on or after the commencement of this Schedule.
Reports about arrivals including personal identifiers
(2) The amendments made by item 4 apply in relation
to an aircraft or ship arriving at a place in Australia on or after that
commencement.
(3) However, subitem (2) does not apply to the
extent that it would require a report given before that commencement to include
a personal identifier.
Reports about arrivals at a place in Australia
(4) The amendments made by items 6, 7, 9 and 10
apply in relation to an aircraft or ship arriving at a place in Australia
(whether or not an airport or a port) on or after that commencement.
(5) However, if the aircraft or ship arrives at a place
that is not an airport or port, then subitem (4) does not apply to the
extent that it would require a report in relation to that arrival to be given
before that commencement.
Reports about departures
(6) The amendments made by items 3, 4, 12, 14, 15,
16 and 17 apply in relation to an aircraft or ship departing from a place in
Australia on or after that commencement.
(7) However, subitem (6) does not apply to the
extent that it would require a report to be given before that commencement.
Dealing with information
(8) The amendment made by item 13 applies in
relation to information in reports provided on or after that commencement.
Saving
(9) If:
(a) an instrument was made for the
purposes of a provision of the Migration Act 1958; and
(b) the instrument was in force immediately
before the commencement of this Schedule; and
(c) the provision is amended by this
Schedule;
then the instrument continues in force (and may be dealt with) as
if it were made for the purposes of that provision as amended.
Part 2—Amendment of
the Customs Act 1901
19 Paragraphs 64ACA(12)(b) and 64ACB(9)(b)
Omit “subsection 245L(6)”, substitute “section 245LB”.
Schedule 7—Seizing bogus documents
Part 1—Amendment of the Migration Act 1958
Division 1—Main amendments
1 Section 103
After “present”, insert “, produce”.
2 Section 103
After “presented”, insert “, produced”.
3 Before section 487
Insert:
Division 1—Bogus documents
487ZI
Prohibition on, and forfeiture of, bogus documents
(1) A person (whether a citizen or non‑citizen)
must not give, present, produce or provide a bogus document to an officer, an
authorised system, the Minister, a tribunal or any other person or body
performing a function or purpose under, or in relation to, this Act (the official),
or cause such a document to be so given, presented, produced or provided.
(2) A bogus document given, presented,
produced or provided in contravention of subsection (1) is forfeited to
the Commonwealth.
487ZJ
Seizure of bogus documents
(1) If an officer reasonably suspects that a
document is forfeited under subsection 487ZI(2), then the officer may
seize the document.
(2) As soon as practicable after seizing the
document, the officer must give written notice of the seizure to the person who
gave, presented, produced or provided the document to the official under
subsection 487ZI(1).
(3) The notice
must:
(a) identify the document; and
(b) state that the document has been
seized; and
(c) specify the reason for the
seizure; and
(d) state that the document will be condemned
as forfeited unless the person institutes proceedings against the Commonwealth
before the end of the period specified in the notice:
(i) to recover the
document; or
(ii) for a declaration that
the document is not forfeited.
(4) For the purposes of paragraph (3)(d),
the period must:
(a) start on the date of the notice;
and
(b) end 90 days after that date.
487ZK
Document condemned as forfeited
(1) If a document is seized under subsection 487ZJ(1),
then:
(a) the person who gave, presented, produced
or provided the document to the official under subsection 487ZI(1); and
(b) if that person is not the owner of
the document—the owner;
may, subject to paragraph (2)(b), institute
proceedings in a court of competent jurisdiction:
(c) to recover the document; or
(d) for a declaration that the
document is not forfeited.
(2) The proceedings:
(a) may be instituted even if the
seizure notice required to be given under subsection 487ZJ(2) in relation
to the document has not yet been given; and
(b) may only be instituted before the
end of the period specified in the seizure notice.
(3) If, before the end of the period
specified in the seizure notice, the person or owner does not institute the
proceedings, the document is condemned as forfeited to the Commonwealth
immediately after the end of that period.
(4) If, before the end of the period
specified in the seizure notice, the person or owner does institute the
proceedings, the document is condemned as forfeited to the Commonwealth at the
end of the proceedings unless there is:
(a) an order for the person or owner
to recover the document; or
(b) a declaration that the document is
not forfeited.
(5) For the purposes of subsection (4),
if the proceedings go to judgment, they end:
(a) if no appeal against the judgment
is lodged within the period for lodging such an appeal—at the end of that
period; or
(b) if an appeal against the judgment
is lodged within that period—when the appeal lapses or is finally determined.
487ZL
Dealing with a document after it is condemned as forfeited
(1) If, under section 487ZK, a document
is condemned as forfeited to the Commonwealth, it must be dealt with or
disposed of (including by being given to another person) in accordance with any
direction given by the Minister under section 499.
(2) If the Minister considers that the
document may be relevant to proceedings in a court or tribunal, then the
Minister:
(a) must give a direction under
section 499 for the safe keeping of the document; and
(b) must authorise access to the
document for the purposes of those proceedings.
Division 2—Other
Division 2—Contingent amendments
4 Subsection 487ZI(1)
After “bogus document”, insert “(within the meaning of section 97)”.
5 Subsection 487ZI(1)
Omit “(within the meaning of section 97)”.
Division 3—Application of
amendments made by Part 1
6 Application of amendments
The amendments made by Part 1 of this Schedule apply to
documents given, presented, produced or provided to the official on or after
the commencement of item 1 of this Schedule.
Part 2—Amendment of
the Australian Citizenship Act 2007
Division 1—Main amendments
7 Section 3
Insert:
bogus document has the same meaning as in
subsection 5(1) of the Migration Act 1958.
8 Before section 46
Insert:
Division 1—Bogus documents
45A
Prohibition on, and forfeiture of, bogus documents
(1) A person (whether a citizen or non‑citizen)
must not give a bogus document to the Minister, a person acting under a
delegation or authorisation of the Minister, a tribunal or any other person or body
performing a function or purpose under, or in relation to, this Act (the official),
or cause such a document to be so given.
(2) A bogus document given in contravention
of subsection (1) is forfeited to the Commonwealth.
45B
Seizure of bogus documents
(1) If the Minister reasonably suspects that
a document is forfeited under subsection 45A(2), then the Minister may
seize the document.
(2) As soon as practicable after seizing the
document, the Minister must give written notice of the seizure to the person
who gave the document to the official under subsection 45A(1).
(3) The notice
must:
(a) identify the document; and
(b) state that the document has been
seized; and
(c) specify the reason for the
seizure; and
(d) state that the document will be condemned
as forfeited unless the person institutes proceedings against the Commonwealth
before the end of the period specified in the notice:
(i) to recover the
document; or
(ii) for a declaration that
the document is not forfeited.
(4) For the purposes of paragraph (3)(d),
the period must:
(a) start on the date of the notice;
and
(b) end 90 days after that date.
45C
Document condemned as forfeited
(1) If a document is seized under subsection 45B(1),
then:
(a) the person who gave the document
to the official under subsection 45A(1); and
(b) if that person is not the owner of
the document—the owner;
may, subject to paragraph (2)(b), institute
proceedings in a court of competent jurisdiction:
(c) to recover the document; or
(d) for a declaration that the
document is not forfeited.
(2) The proceedings:
(a) may be instituted even if the
seizure notice required to be given under subsection 45B(2) in relation to
the document has not yet been given; and
(b) may only be instituted before the
end of the period specified in the seizure notice.
(3) If, before the end of the period
specified in the seizure notice, the person or owner does not institute the
proceedings, the document is condemned as forfeited to the Commonwealth
immediately after the end of that period.
(4) If, before the end of the period
specified in the seizure notice, the person or owner does institute the
proceedings, the document is condemned as forfeited to the Commonwealth at the
end of the proceedings unless there is:
(a) an order for the person or owner
to recover the document; or
(b) a declaration that the document is
not forfeited.
(5) For the purposes of subsection (4),
if the proceedings go to judgment, they end:
(a) if no appeal against the judgment
is lodged within the period for lodging such an appeal—at the end of that
period; or
(b) if an appeal against the judgment
is lodged within that period—when the appeal lapses or is finally determined.
45D
Dealing with a document after it is condemned as forfeited
(1) If, under section 45C, a document is
condemned as forfeited to the Commonwealth, it must be dealt with or disposed
of (including by being given to another person) in accordance with any
direction given by the Minister.
(2) If the Minister considers that the
document may be relevant to proceedings in a court or tribunal, then the
Minister:
(a) must give a direction for the safe
keeping of the document; and
(b) must authorise access to the
document for the purposes of those proceedings.
(3) A direction given under this section is
not a legislative instrument.
Division 2—Other
Division 2—Contingent amendments
9 Section 3
Insert:
bogus document has the same meaning as in
section 97 of the Migration Act 1958.
10 Section 3 (definition of bogus document)
Omit “section 97”, substitute “subsection 5(1)”.
Division 3—Application of
amendments made by Part 2
11 Application of amendments
The amendments made by Part 2 of this Schedule apply to
documents given to the official on or after the commencement of item 1 of
this Schedule.
[Minister’s
second reading speech made in—
Senate on
24 September 2014
House of
Representatives on 30 October 2014]