The PRESIDENT (Senator the Hon. Sue Lines ) took the chair at 09:30, made an acknowledgement of country and read prayers.
That so much of the standing orders be suspended as would prevent him moving a motion to provide for the consideration of a matter, namely a motion to allow a motion relating to the Albanese Government's response to the decision to be moved and determined immediately.
The Senate divided. [10:06]
(The President—Senator Lines)
Infrastructure Australia Amendment (Independent Review) Bill 2023
… replacing neglect, buck-passing and pork-barrelling with long-term planning where governments predict and anticipate infrastructure needs and demands, not merely react to them.
Infrastructure is important for supporting socio-economic development as the population grows. It enables economic and productivity growth by reducing congestion and allowing goods and people to move quickly and efficiently around the country and internationally.
Perth is experiencing worsening road congestion. The 2019 Australian Infrastructure Audit estimated that congestion in Perth will cost $3.1 billion per annum in 2031.
(1) Schedule 1, item 4, page 7 (after line 29), after section 5D, insert:
5D B Functions — annual statements
(1) Infrastructure Australia must, during each financial year, prepare and give to the Minister the following:
(a) an annual budget statement to inform the annual Commonwealth budget process on infrastructure investment; and
(b) an annual performance statement on the performance outcomes being achieved by States, Territories and local government authorities in relation to the infrastructure investment program and existing project initiatives funded by the Commonwealth.
(2) Infrastructure Australia must cause each annual statement to be:
(a) tabled in both Houses of the Parliament no later than 14 days prior to the scheduled public release of the annual Commonwealth budget each year; and
(b) published on Infrastructure Australia's website as soon as practicable after the annual statement is tabled in the Parliament.
(1) Schedule 1, item 22, page 12 (after line 25), after subsection 8(2), insert:
(2A) In appointing the Commissioners, the Minister must ensure that at least one of the Commissioners has a substantial connection to, or substantial experience in, a regional area through business, industry or community involvement.
(1) Schedule 1, item 22, page 14 (after line 10), after section 11, insert:
11A Disclosure of interests
A Commissioner must publicly disclose all interests, pecuniary or otherwise, that the Commissioner has or may acquire and that conflict or could conflict with the proper performance of the Commissioner's functions.
(1) Schedule 1, item 4, page 5 (after line 8), after subsection 5B(8), insert:
(8A) In performing the function mentioned in subsection (6) in relation to a proposal, Infrastructure Australia must consider what impacts the proposal, if carried out, would have on:
(a) Australia's net greenhouse gas emissions, as reported in national inventory reports in accordance with:
(i) the United Nations Framework Convention on Climate Change, done at New York on 9 May 1992, as amended and in force for Australia from time to time; and
(ii) the Paris Agreement, done at Paris on 12 December 2015, as amended and in force for Australia from time to time; and
(b) the achievement of Australia's greenhouse gas emissions reduction targets; and
(c) any policy issues arising from climate change that Infrastructure Australia considers relevant to the proposal.
Note: The United Nations Framework Convention on Climate Change is in Australian Treaty Series 1994 No. 2 ([1994] ATS 2) and the Paris Agreement is in Australian Treaty Series 2016 No. 24 ([2016] ATS 24). They could in 2023 be viewed in the Australian Treaty Series Library on the AustLII website (www.austlii.edu.au).
(1) Schedule 1, page 3 (after line 12), after item 2, insert:
2A Section 3 (at the end of paragraph (d) of the definition of nationally significant infrastructure )
Add "and".
2B Section 3 (after paragraph (d) of the definition of nationally significant infrastructure )
Insert:
(e) social infrastructure;
2C Section 3
Insert:
social infrastructure means facilities, spaces, services or networks that support quality of life and wellbeing of communities.
(2) Schedule 1, item 3, page 3 (after line 22), after paragraph 5(c), insert:
(d) to assess, and report on, projects relating to nationally significant infrastructure in accordance with section 5DA;
(3) Schedule 1, item 4, page 4 (after line 10), at the end of section 5A, add:
(4) Infrastructure Australia must cause a copy of an audit prepared under this section to be tabled in each House of the Parliament within 10 sitting days of that House after the audit is finalised.
(4) Schedule 1, item 4, page 5 (after line 14), at the end of section 5B, add:
Tabling requirement
(10) Infrastructure Australia must cause a copy of the following documents to be tabled in each House of the Parliament within 10 sitting days of that House after the document is finalised:
(a) the national planning and assessment framework mentioned in subsection (1);
(b) the summaries mentioned in subsection (9).
(5) Schedule 1, item 4, page 6 (after line 13), at the end of section 5C, add:
Tabling requirement
(7) Infrastructure Australia must cause a copy of an Infrastructure Priority List and an Infrastructure Plan to be tabled in each House of the Parliament within 10 sitting days of that House after the document is finalised.
(6) Schedule 1, item 4, page 7 (after line 29), after section 5D, insert:
5DA Functions — assessments of certain nationally significant infrastructure projects without prior evaluation
(1) For the purposes of paragraph 5(d), Infrastructure Australia has the function of assessing, and reporting on, projects covered by subsection (2).
(2) A project is covered by this subsection if:
(a) it is a project for investment in, or enhancements to, nationally significant infrastructure; and
(b) the project involves expenditure by or on behalf of the Commonwealth; and
(c) the Commonwealth Government's total expenditure involved in the project is more than $250 million; and
(d) the Commonwealth Government has committed to the project without prior evaluation (or endorsement of evaluation) of a proposal for the project by Infrastructure Australia.
(3) Infrastructure Australia must ensure that assessments under this section are conducted at least once in each financial year beginning on or after the commencement of this section and prepare a report on the assessment.
(4) Infrastructure Australia must cause a copy of the report on the assessment under subsection (3) to be tabled in each House of the Parliament within 10 sitting days after it has been finalised.
Other assessments
(5) Infrastructure Australia may conduct other assessments under this section, and prepare reports on those assessments, on its own initiative.
(6) Infrastructure Australia must cause a copy of the report on the assessment mentioned in subsection (5) to be tabled in each House of the Parliament within 10 sitting days after it has been finalised.
Conduct of assessments
(7) The regulations may prescribe matters relating to the conduct of assessments under this section.
(7) Schedule 1, item 22, page 13 (line 1), at the end of subsection 8(3), add:
; and (c) the person is not an existing or former member of the governing body of:
(i) a company engaged in coal, oil or gas extraction; or
(ii) an energy company based on the burning of coal, oil or gas.
(1) After subsection 5DA(2), insert:
Initial assessment
(2A) Infrastructure Australia must conduct an assessment under this section, and prepare a report on the assessment, in relation to projects covered by subsection (2) that are commitments of the Commonwealth Government first made on or after 22 May 2022.
(2B) Infrastructure Australia must cause a copy of the report on the assessment under subsection (2A) to be tabled in each House of the Parliament:
(a) within 3 months after the commencement of this section; or
(b) if no sitting day of the relevant House occurs within that period and after the report is finalised—on the next sitting day after the end of that period.
Annual assessments
The committee divided. [11:35]
(The Chair—Senator McLachlan)
Nature Repair Market Bill 2023
Nature Repair Market (Consequential Amendments) Bill 2023
… we would agree that trying to harmonise this bill and the reforms in the EPBC legislation—and particularly the standards associated with subordinate legislation associated with those reforms will be very important. We'd like to see the whole package harmonised.
… issues around how the market is used by the private sector and then demand driver really need to be clarified before this bill is progressed. We think that as a matter of priority clarity should be provided around reforms to the EPBC Act …
… the EPBC Act reforms and, indeed, some of those critical Chubb review recommendations should be a matter of priorities, given that much of this market is premised on some of those underpinning legislative instruments.
The Nature Repair Market Bill, if passed, must work seamlessly with the EPBC Act going forward, which means we need to understand reforms being proposed to the latter act—
If there is a potential for projects that are created to be used as offsets under the EPBC Act, then I query how we can make the two pieces of legislation work when we haven't seen the second bit. … the sequencing is of concern when the fundamental piece of legislation that the Commonwealth has is the EPBC Act … the benchmark for the Commonwealth to achieve its international obligations—
but it needs to work in concert with other legislation, and other legislation needs to work in concert with it.
We recommend that the NRM (Nature Repair Market) Bill be delayed until Parliament has been presented with key EPBC reforms, including proposed National Environmental Standards—
for environmental offsets, regional planning, and threatened species protection, to demonstrate that a rigorous and high integrity regulatory system will support the operation of a Nature Repair Market.
Every expert we've had today, and the exact report that the minister has used to promote this policy—by PwC of all people!—suggests otherwise.
You can't point to any evidence that says this is going to be net positive. In fact, what does 'net positive' even mean when you're talking about biodiversity? It is clear that this bill is in absolute tatters. It has no friends. Even the people the minister had thought would back it have not backed it in. It's in tatters. I can see the looks on your faces—
It must be totally demoralising to have put in all this effort and then to have it put up in lights, given some scrutiny and be shown to be an absolute sham.
Anyway, I'm finished—
Omit all words after "That", substitute "further consideration of the bills be postponed until 1 July 2024 to enable them to be considered alongside the further bills the Government intends to introduce to implement its response to the second independent review of the Environment Protection and Biodiversity Conservation Act 1999, led by Professor Graeme Samuel AC".
Linking farmers with investors who will partner with them to invest in environmental protection is a significant step forward in how we protect and care for our country.
We welcome the creation of a Nature Repair Market and its applicability to all landholders. Overall, TNC is supportive of the need to incentivise and reward landholders for the protection, good management and restoration of native vegetation, threatened species habitat and other natural values. There is a role for governments in ensuring there is consistency, integrity and transparency and a baseload of demand, particularly in emerging market mechanisms …
The NFF supports the proposed Nature Repair Market Bill and recognises the opportunities it will offer to farmers and landholders in contributing to ecosystem services and participating in a broader marketplace.
The Bill provides a critical step towards achieving sustainable and resilient ecosystems in Australia.
First Nations people are not just another landowning interest group alongside governments and private landowners and leaseholders … First Nations people will be the dominant players in any real or imagined 'nature repair' or 'biodiversity' market in Australia today because of their rights and interests in a majority part of the continent, much in remote and very remote Australia, that is relatively environmentally intact and so has relatively high biodiversity 'value'.
… by undertaking projects that deliver biodiversity improvements or protect biodiversity on land which they hold through different types of tenure. This includes exclusive and non-exclusive Native Title, land rights, leasehold and freehold. First Nations people could also provide on-ground management services or advice to support nature repair projects managed by others.
The wealthy virtue-signalling elite want to invest billions of dollars in Australian agricultural land, lock it up and forget about it to appease their own self-loathing of their irresponsible lifestyles while they continue their jet-setting, latte-sipping affluence …
There can be no purpose more inspiriting than to begin the age of restoration, reweaving the wondrous diversity of life that still surrounds us.
Considering the prodigious achievements of the profit motive in wrecking land, one hesitates to reject it as a vehicle for restoring land. I incline to believe we have overestimated the scope of the profit motive. Is it profitable for the individual to build a beautiful home? To give his children a higher education? No, it is seldom profitable, yet we do both. These are, in fact, ethical and aesthetic premises which underlie the economic system. Once accepted, economic forces tend to align the smaller details of social organization into harmony with them.
I have worked as an auditor on these projects in the Brazilian Amazon and when I started this analysis, I wanted to know if we could trust their predictions about deforestation. The evidence from the analysis—not just the synthetic controls—suggests we cannot. I want this system to work to protect rainforests. For that to happen, we need to acknowledge the scale of problems with the current system.
We're going to need a lot more energy… We're going to have to be doing much more nuclear.
Sweden is going to build new nuclear power plants to produce more clean electricity and speed up the green transition.
If nuclear power doesn't stack up on cost today, that's one thing. But objecting because of outdated twentieth century ideology is another.
Following the failure—
of this year's referendum for constitutional recognition—
and a Voice to Parliament—
many people are wondering what the pathway forward is for improving the lives of First Peoples.
Legislating UNDRIP is an immediate action the Australian Government can take to fulfil its promises to strengthen First Peoples' rights, including the right to self-determination and cultural rights … this will have tangible and lasting benefits for First Peoples in this country.
In addition to natural population increase—which is only about 120,000 a year—what this means is that close to 600,000 have been added to the population in a year. This is almost half the population of Adelaide and over 100,000 more than the population of Canberra.
Australia has not supplied weapons to Israel since the conflict began and for at least the past five years.
That—
(a) the Migration Amendment (Bridging Visa Conditions) Bill 2023 be called on immediately and, until the bill is finally determined, the routine of business be as follows:
i. consideration of the bill only;
ii. the time allotted for the remaining stages of the Bill be as follows:
(A) second reading—60 minutes,
(B) the question be put on all remaining stages after a further 90 minutes.
(b) paragraph (a) operate as a limitation of debate under standing order 142; and
(c) following consideration of the bill, the Senate return to its routine of business.
That the motion be now put.
The Senate divided. [15:26]
(The President—Senator Lines)
The Senate divided. [15:29]
(The President—Senator Lines)
Migration Amendment (Bridging Visa Conditions and Other Measures) Bill 2023
That this bill be now read a second time.
This Bill proposes important amendments to the Migration Act that complement and reinforce amendments passed by the Parliament on 18 November 2023.
On the 8th of November, in the case of NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs, the High Court determined that NZYQ's detention was unlawful:
' By reason of there having been, and continuing to be, no real prospect of the removal of the plaintiff from Australia … in the reasonably foreseeable future '.
The High Court's decision has significant implications for the safety of vulnerable people in the community, and the mechanisms by which the Government can provide for their protection.
Let me be clear, the Australian Government made preparations ahead of the High Court ruling.
State and Territory police counterparts were briefed on the potential implications of this case prior to the decision being handed down- because community safety has always been front of mind in our approach to this case.
Following the 8 November ruling, all released individuals have been subject to appropriate stringent visa conditions, including regular reporting obligations.
The Australian Federal Police and Australian Border Force continue to work together with state and territory authorities and law enforcement to support community safety.
Shortly after, in response to the court's decision, on 16 November 2023 the Parliament passed amendments to the Migration Act and Migration Regulations to further support an enduring and robust framework for the management of this cohort in the community.
While the legislation passed on 16 November provided a strong initial response to this decision—the Government is continuing to work through the implications of the High Court's judgment.
The legislative amendments proposed today reinforce those initial amendments, by taking the next necessary steps towards ensuring the protection of the Australian community.
We will leave no stone unturned in our efforts to protect the Australian community.
It is possible as we continue to work through the implications of this decision, further legislation may be required to ensure the community is further protected.
The Government remains committed to reinforcing Australia's laws to support the appropriate and proportionate management of the affected cohort of people while their immigration status is being resolved.
And therefore the Government will continue to review these arrangements, and develop any further amendments, as required- including when we have the High Court's reasons for its decision.
I believe the Australian community would rightly expect this of us.
Community safety remains the first priority of the Australian Government.
And the amendments proposed today further strengthen the legislative framework available to manage this cohort, pending their removal from Australia, which we will continue to pursue.
Specifically, this legislation provides further clarity about the Government's expectations with regard to the conduct and the behaviour of this cohort, with a particular focus on those with a history of offences in relation to the most vulnerable in our society, including minors, and victims.
This Bill also proposes measures to strengthen the authority for the appropriate collection and use of information gathered by electronic monitoring devices.
These amendments reinforce the critical collaboration between Commonwealth and State law enforcement agencies, specifically in regards to effective information sharing, to ensure the behaviour of non-citizens in our community complies with our expectations of visitors to this country.
The Australian Government is putting the needs of victims and their families, and of minors and vulnerable people, first.
These amendments are in line with community expectations—and they are the right thing to do.
New offences
Under these laws, those who have been convicted of an offence that involves a minor, or another vulnerable person must not:
1. Perform any work, or participate in any regular organised activity involving more than incidental contact with another person who is a minor or another vulnerable person, or
2. Go within 200 meters of a school, childcare centre or day care centre.
3. The laws also stipulate that those previously convicted of an offence involving violence or sexual assault must not contact the victim of that offence, or any member of their family.
The sentences provided for in this Bill reflect the seriousness of the offending, and the Government's steadfast commitment to protecting the wellbeing of the most vulnerable members of Australian society.
Strong criminal offences are the most effective response to breaches of these visa conditions for the NZYQ-affected cohort. This is because—by reason of the High Court's decision—the normal consequences of breaching visa conditions do not apply.
The intent of the Government is clear—that certain behaviours are unacceptable, and that there strong, proportionate and immediate consequences for the breach of these visa conditions.
Charges brought as a result of the new offences will be subject to existing criminal proceedings and judicial determination, and the courts will consider individual circumstances when determining the appropriate sentence.
The evidentiary burden for establishing a reasonable defence for failure to comply with the conditions will sit with the non-citizen. The standard defences available in the Criminal Code will also apply.
Again, I would like to stress that these changes are reasonable, necessary and proportionate to the Government's objectives of supporting the safety of the community, particularly those most vulnerable.
The Australian community expects, and the Australian Government affirms, that these penalties should reflect the seriousness of the breach of conditions.
Powers to collect and share information
The amendments proposed today will also strengthen the authority for the collection and use of information gathered by electronic monitoring devices.
This includes:
This includes monitoring the visa holder's compliance with the conditions of their visa, and responding rapidly to any indications of non-compliance.
The purposes of these conditions are to deter the individual from committing further offences whilst holding the removal pending visa.
This supports ongoing monitoring, which will help to keep the community safe.
As mentioned previously, the Government will continue to pursue the removal of these people from Australia at the first possible opportunity.
The utilisation of electronic monitoring devices will therefore also enable the Government to locate the visa holder to facilitate their removal from Australia as soon as a real prospect of removal becomes apparent.
Acknowledging our obligations to privacy under Australian law, appropriate protocols and processes will be implemented to ensure the information derived from these devices is protected exclusively within the bounds of the purpose for which it is being shared.
Closing remarks
These amendments are reasonable and necessary, and will be further supported by a number of amendments to the Migration Regulations 1994 .
They make our laws more durable, by getting ahead of any potential future challenges.
We are making strict laws stricter.
Strong laws stronger.
Tough laws tougher.
With these laws we are ensuring the safety of the Australian community.
We will continue to ensure the cohort of individuals released from immigration detention as a result of the High Court decision are managed appropriately under the relevant legal frameworks.
There is no greater priority for this government than the safety of Australians, and this Bill is a demonstration of that.
I commend this Bill to the chamber.
The lack of evidence underpinning both instruments has potentially serious implications for their validity and reliability. Without a strong theoretical and empirical basis for factor inclusion, it is not reasonable to anticipate that the instruments are able to predict their specified risk with anything other than chance.
Two convicted child sex abuse offenders are loose in one state after their release from immigration detention, the police have confirmed.
South Australian Assistant Commissioner of Crime John Venditto said police officers were monitoring the two registered sex offenders from a total of six former detainees now free in the state following November's High Court decision striking down indefinite detention.
"We know where they are, we visit them," the assistant commissioner said.
"We give them the conditions. We make sure they don't go near children, we make sure children don't go near them."
The revelation comes in the same week 65-year-old former detainee Aliyawar Yawari fronted Adelaide Magistrates Court facing charges he indecently assaulted a woman just three weeks after his release from detention in WA.
… … …
Mr Yawari was previously jailed for assaulting three elderly woman between 2013 and 2014.
… South Australian police were notified when Mr Yawari entered South Australia and they received alerts from the AFP and the ABF when detainees crossed borders.
We in South Australia, visit all of them. We go face to face. We meet them. We verify their identity and welcome them to South Australia.
The Senate divided. [16:38]
(The Acting Deputy President—Senator Fawcett)
At the end of the motion, add ", but the Senate calls on the Government to introduce legislation to:
(a) enable the immediate deportation, without right of appeal, of any bridging visa holder who attends a rally which advocates racism, violence or discrimination; and
(b) increase the term of imprisonment to 25 years for bridging visa holders who commit serious criminal offences and enable the immediate deportation of those persons on their release from prison".
The Senate divided. [16:42]
(The Acting Deputy President—Senator Fawcett)
The Senate divided. [16:46]
(The Acting Deputy President—Senator Fawcett)
(1) Title, page 1 (line 1), omit "the Migration Act 1958 ", substitute "the law relating to migration, and to protect the Australian community from serious offenders".
(2) Clause 1, page 1 (line 5), omit " Amendment (Bridging Visa Conditions ", substitute "and Other Legislation Amendment (Bridging Visas, Serious Offenders ".
(3) Schedule 1, heading, page 3 (line 1), after "Amendments", insert "relating to bridging visas etc.".
(4) Schedule 1, page 3 (before line 4), before item 1, insert:
1A After section 76A
Insert:
76AA Effect of community safety order on visa held by non-citizen etc.
(1) This section applies if:
(a) a community safety order is made in relation to a non-citizen; and
(b) the order comes into force at a particular time (the relevant time ).
Non-citizen who holds a visa (other than a criminal justice visa) at the relevant time
(2) If the non-citizen holds a visa (other than a criminal justice visa) at the relevant time, then, despite any other provision of this Act or the regulations, the following apply:
(a) that visa ceases to be in effect at the relevant time;
(b) the non-citizen is taken, immediately after the relevant time, to have been granted a Subclass 070 (Bridging (Removal Pending)) visa (the BVR visa );
(c) the BVR visa is taken to come into effect as soon as it is taken to be granted under paragraph (b).
Note: The visa period for the visa mentioned in paragraph (a) ends at the relevant time and the visa period for the BVR visa begins when it is taken to be granted.
Non-citizen who holds a criminal justice visa at the relevant time
(3) If:
(a) the non-citizen holds a criminal justice visa at the relevant time; and
(b) the criminal justice visa ceases to be in effect at a particular time (the cessation time ) during the period in which the community safety order is in force in relation to the non-citizen;
then, despite any other provision of this Act or the regulations, the following apply:
(c) the non-citizen is taken, immediately after the cessation time, to have been granted a Subclass 070 (Bridging (Removal Pending)) visa (the BVR visa );
(d) the BVR visa is taken to come into effect as soon as it is taken to be granted under paragraph (c).
Note: The visa period for the BVR visa begins when it is taken to be granted.
Matters relating to the BVR visa taken to be granted to the non-citizen
(4) Subject to subsections (6) and (7), this Act and the regulations apply, after the commencement of this section, in relation to the BVR visa that is taken to be granted under paragraph (2)(b) or (3)(c) (as the case may be) in the same way as they would apply in relation to a Subclass 070 (Bridging (Removal Pending)) visa granted under the regulations.
(5) Without limiting subsection (4), the following provisions of the regulations, as in force at the time the BVR visa is taken to be granted under paragraph (2)(b) or (3)(c) (as the case may be), apply in relation to the BVR visa:
(a) a provision specifying when a Subclass 070 (Bridging (Removal Pending)) visa is in effect;
(b) a provision prescribing that a Subclass 070 (Bridging (Removal Pending)) visa permits the visa holder to remain in Australia;
(c) a provision specifying the conditions to which a Subclass 070 (Bridging (Removal Pending)) visa that is taken to be granted under paragraph (2)(b) or (3)(c) (as the case may be) is subject.
(6) The non-citizen's BVR visa must not be subject to either of the following conditions:
(a) a condition requiring the non-citizen to remain, between certain times of a day, at a particular address for the non-citizen for the day;
(b) a condition requiring the non-citizen to wear a monitoring device.
Minister must not do certain things while the community safety order is in force
(7) The Minister must not do either of the following at any time while the community safety order made in relation to the non-citizen is in force:
(a) invite the non-citizen, for the purposes of the regulations, to apply for another Subclass 070 (Bridging (Removal Pending)) visa;
(b) grant (whether or not on application) the non-citizen another Subclass 070 (Bridging (Removal Pending)) visa under the regulations.
Inconsistency between the community safety order and the BVR visa
(8) If:
(a) the community safety order that is in force in relation to the non-citizen is a community safety supervision order; and
(b) at a particular time, one or more conditions (the supervision order conditions ) are imposed on the non-citizen by the community safety supervision order; and
(c) at that time, a condition to which the non-citizen's BVR visa is subject is inconsistent, in whole or in part, with any of the supervision order conditions;
then, despite subsections (4) and (5), the BVR visa is to be taken, at that time, not to be subject to that condition to the extent of any such inconsistency.
(9) If:
(a) the community safety order made in relation to the non-citizen is a community safety detention order; and
(b) the non-citizen is unable, at a particular time, to comply with a condition to which the non-citizen's BVR visa is subject; and
(c) the non-citizen is unable to comply with the condition only because the community safety detention order is in force in relation to the non-citizen at that time;
then, despite subsections (4) and (5), the BVR visa is to be taken, at that time, not to be subject to that condition.
(10) Subsections (8) and (9) do not apply at any time while the community safety order made in relation to the non-citizen is suspended.
Definitions
(11) In this section:
community safety detention order has the same meaning as in Division 395 of theCriminal Code .
community safety order means a community safety detention order or a community safety supervision order.
community safety supervision order has the same meaning as in Division 395 of theCriminal Code .
monitoring device means any electronic device capable of being used to determine or monitor the location of a person or an object or the status of an object.
(5) Page 8 (after line 21), at the end of the bill, add:
Schedule 2 — Amendments relating to community safety orders
Part 1 — Amendments
Administrative Decisions (Judicial Review) Act 1977
1 After paragraph (dad) of Schedule 1
Insert:
(dada) decisions of the Immigration Minister under Division 395 of the Criminal Code ;
Australian Security Intelligence Organisation Act 1979
2 At the end of subsection 35(2)
Add:
; (d) a condition imposed on a person by a community safety supervision order under Division 395 of the Criminal Code (community safety orders);
(e) action covered by any of subsections 395.17(2) to (5) of the Criminal Code (actions relating to electronic monitoring).
Crimes Act 1914
3 Paragraphs 3ZQU(1)(e) and 3ZZEA(1)(d)
Omit "or 105A", substitute ", 105A or 395".
4 After Part IAAB
Insert:
Part IAABA — Monitoring of compliance with community safety supervision orders etc.
3ZZUHA Simplified outline of this Part
This Part affects how Part IAAB operates, so that that Part (with some modifications set out in this Part) also applies in relation to community safety supervision orders made under Division 395 of the Criminal Code .
3ZZUHB Definitions
In this Part:
community safety supervision order has the same meaning as in Division 395 of theCriminal Code .
Part 9.10 object means the protection of the community from serious harm by addressing the unacceptable risk of a serious offender committing a serious violent or sexual offence.
serious offender has the same meaning as in Division 395 of theCriminal Code .
serious violent or sexual offence has the same meaning as in Division 395 of theCriminal Code .
3ZZUHC Application of Part IAAB to community safety supervision orders
(1) Part IAAB (other than section 3ZZJA or 3ZZJB) applies as if:
(a) a reference to a Part 5.3 supervisory order included a reference to a community safety supervision order; and
(b) a reference to a Part 5.3 object included a reference to a Part 9.10 object.
(2) Subsection 3ZZOA(4) applies as if the following paragraph were inserted after paragraph (b) of that subsection:
(c) in relation to a community safety supervision order—the possibility that the person has committed, is committing, or will commit, a serious violent or sexual offence;
(3) Paragraph 3ZZOA(5)(l) applies as if the following subparagraph were inserted before subparagraph (i) of that paragraph:
(ia) a community safety supervision order; or
(4) Subsection 3ZZOA(5) applies as if the following paragraph were inserted after paragraph (q) of that subsection:
(qa) for a community safety supervision order:
(i) specify when the community safety supervision order comes into force; and
(ii) specify the end of the period during which the community safety supervision order is in force; and
(5) Subsection 3ZZOB(4) applies as if the following paragraph were inserted after paragraph (c) of that subsection:
(d) in relation to a community safety supervision order—the possibility that the person has committed, is committing, or will commit, a serious violent or sexual offence;
(6) Paragraph 3ZZOB(5)(j) applies as if the following subparagraph were inserted before subparagraph (i) of that paragraph:
(ia) a community safety supervision order; or
(7) Subsection 3ZZOB(5) applies as if the following paragraph were inserted after paragraph (o) of that subsection:
(oa) for a community safety supervision order:
(i) specify when the community safety supervision order comes into force; and
(ii) specify the end of the period during which the community safety supervision order is in force; and
(8) Paragraph 3ZZOD(1)(b) applies as if the following subparagraph were inserted after subparagraph (iii) of that paragraph:
(iiia) the community safety supervision order is revoked and no further community safety supervision order is made in relation to the serious offender;
Criminal Code Act 1995
5 At the end of Chapter 9 of the Criminal Code
Add:
Part 9.10 — Community safety orders
Division 395 — Community safety orders
Subdivision A — Preliminary
395.1 Object
The object of this Division is to protect the community from serious harm by providing that non-citizens who:
(a) pose an unacceptable risk of committing serious violent or sexual offences; and
(b) have no real prospect of their removal from Australia becoming practicable in the reasonably foreseeable future;
are subject to:
(c) a community safety detention order; or
(d) a community safety supervision order.
395.2 Definitions
(1) In this Division:
AFP member means:
(a) a member of the Australian Federal Police (within the meaning of the Australian Federal Police Act 1979 ); or
(b) a special member of the Australian Federal Police (within the meaning of that Act).
Commonwealth law enforcement officer has the meaning given by Part 7.8.
community safety detention order means an order made under subsection 395.12(1).
community safety order means a community safety detention order or a community safety supervision order.
community safety order decision means:
(a) a decision on an application for a community safety order; or
(b) a decision on an application to vary a community safety supervision order; or
(c) a decision in a review of a community safety order to affirm, revoke or vary the order; or
(d) a decision made under section 395.34 (when a serious offender is unable to engage a legal representative).
Note: See also subsection (4).
community safety order proceeding means a proceeding under Subdivision C, D or E.
community safety supervision order means an order made under subsection 395.13(1).
detained in custody has the meaning given by subsection (2).
detained in custody in a prison has the meaning given by subsection (3).
exemption condition has the meaning given by subsection 395.15(2).
immigration detention has the same meaning as in theMigration Act 1958 .
Immigration Minister means the Minister administering theMigration Act 1958 .
lawyer means a person enrolled as a legal practitioner of a federal court or the Supreme Court of a State or Territory.
monitoring device means any electronic device capable of being used to determine or monitor the location of a person or an object or the status of an object.
Note: See also the definition of related monitoring equipment in this subsection.
non-citizen means a person who is not an Australian citizen.
personal information has the same meaning as in thePrivacy Act 1988 .
police officer means:
(a) an AFP member; or
(b) a member (however described) of a police force of a State or Territory.
premises includes a place, an aircraft, a vehicle and a vessel.
prison includes any gaol, lock-up or remand centre.
related monitoring equipment , in relation to a monitoring device, means any electronic equipment necessary for operating the monitoring device.
relevant expert means any of the following persons who is competent to assess the risk of a serious offender committing a serious violent or sexual offence:
(a) a person who is:
(i) registered as a medical practitioner under a law of a State or Territory; and
(ii) a fellow of the Royal Australian and New Zealand College of Psychiatrists;
(b) any other person registered as a medical practitioner under a law of a State or Territory;
(c) a person registered as a psychologist under a law of a State or Territory;
(d) any other expert.
reside includes reside temporarily.
residence includes temporary residence.
senior AFP member means:
(a) the Commissioner of the Australian Federal Police; or
(b) a Deputy Commissioner of the Australian Federal Police; or
(c) an AFP member of, or above, the rank of Superintendent.
serious foreign violent or sexual offence means an offence against a law of a foreign country, or of part of a foreign country, where:
(a) it is an offence punishable by imprisonment for life or for a period, or maximum period, of at least 7 years; and
(b) it is constituted by conduct that, if engaged in in Australia, would constitute an offence against a law of the Commonwealth, a State or a Territory; and
(c) the particular conduct constituting the offence involved, involves or would involve, as the case requires:
(i) loss of a person's life or serious risk of loss of a person's life; or
(ii) serious personal injury or serious risk of serious personal injury; or
(iii) sexual assault; or
(iv) sexual assault involving a person under 16; or
(v) the production, publication, possession, supply or sale of, or other dealing in, child abuse material (within the meaning of Part 10.6); or
(vi) consenting to or procuring the employment of a child, or employing a child, in connection with material referred to in subparagraph (v); or
(vii) acts done in preparation for, or to facilitate, the commission of a sexual offence against a person under 16.
serious offender has the meaning given by subsections 395.5(1) and (2).
Note: This definition is affected by section 395.37.
serious violent or sexual offence means an offence against a law of the Commonwealth, a State or a Territory where:
(a) it is an offence punishable by imprisonment for life or for a period, or maximum period, of at least 7 years; and
(b) the particular conduct constituting the offence involved, involves or would involve, as the case requires:
(i) loss of a person's life or serious risk of loss of a person's life; or
(ii) serious personal injury or serious risk of serious personal injury; or
(iii) sexual assault; or
(iv) sexual assault involving a person under 16; or
(v) the production, publication, possession, supply or sale of, or other dealing in, child abuse material (within the meaning of Part 10.6); or
(vi) consenting to or procuring the employment of a child, or employing a child, in connection with material referred to in subparagraph (v); or
(vii) acts done in preparation for, or to facilitate, the commission of a sexual offence against a person under 16.
specified authority : a person, or person in a class of persons, is aspecified authority for a requirement or condition in a community safety supervision order in relation to another person (thesubject ) if:
(a) the person or class is any of the following:
(i) a police officer, or class of police officer;
(ii) if the requirement or condition relates to electronic monitoring—a person, or class of person, who is involved in electronically monitoring the subject;
(iii) for any requirement or condition in the order—any other person, or class of person; and
(b) the Court making the order is satisfied that the person or class is appropriate in relation to the requirement or condition; and
(c) the person or class is specified in the order.
Definition of detained in custody etc.
(2) A person is detained in custody if the person is detained in custody under a law of the Commonwealth, a State or a Territory.
(3) A person is detained in custody in a prison if the person is detained in custody in a gaol, lock-up or remand centre, including under a community safety detention order. However, a person is notdetained in custody in a prison if the person is in immigration detention in a gaol, lock-up or remand centre.
When a decision is made
(4) To avoid doubt, a decision on an application to a Supreme Court of a State or Territory for a community safety order is not made until the Court determines the application in accordance with section 395.10.
395.3 Concurrent operation intended
This Division is not intended to exclude or limit the concurrent operation of any law of a State or Territory.
395.4 Regulations may modify operation of this Division to deal with interaction between this Division and State and Territory laws
(1) The regulations may modify the operation of this Division so that:
(a) provisions of this Division do not apply to a matter that is dealt with by a law of a State or Territory specified in the regulations; or
(b) no inconsistency arises between the operation of a provision of this Division and the operation of a State or Territory law specified in the regulations.
(2) Without limiting subsection (1), regulations made for the purposes of that subsection may provide that the provision of this Division does not apply to:
(a) a person specified in the regulations; or
(b) a body specified in the regulations; or
(c) circumstances specified in the regulations; or
(d) a person or body specified in the regulations in the circumstances specified in the regulations.
(3) In this section:
matter includes act, omission, body, person or thing.
Subdivision B — Community safety orders
395.5 Who a community safety order may apply to and effect of community safety orders
(1) A community safety order may be made under section 395.12 or 395.13 in relation to a person (the serious offender ) if:
(a) the person has been convicted of a serious violent or sexual offence; and
(b) the person is a non-citizen; and
(c) there is no real prospect of removal of the person from Australia becoming practicable in the reasonably foreseeable future; and
(d) a subsection of section 395.6 provides that the order may be made in relation to the person; and
(e) the person is at least 18 years old.
Note: Before making the order, a Court must be satisfied of certain matters under section 395.12 or 395.13.
(2) A community safety order may be made under section 395.12 or 395.13 in relation to a person (the serious offender ) if:
(a) the person has been convicted of a serious foreign violent or sexual offence; and
(b) the person is a non-citizen; and
(c) there is no real prospect of removal of the person from Australia becoming practicable in the reasonably foreseeable future; and
(d) a subsection of section 395.6 provides that the order may be made in relation to the person; and
(e) the person is at least 18 years old.
Note: Before making the order, a Court must be satisfied of certain matters under section 395.12 or 395.13.
Effect of community safety detention order
(3) The effect of a community safety detention order is to commit the person to detention in a prison for the period the order is in force.
Note 1: The period must not be more than 3 years (see subsection 395.12(5)).
Note 2: See also:
(a) section 395.41 (detention under the Migration Act 1958 ); and
(b) section 395.42 (effect of prison detention on community safety order); and
(c) subsection 395.47(2) (arrangements with States and Territories); and
(d) section 395.50 (effect of community safety detention orders on bail or parole laws).
Effect of a community safety supervision order
(4) The effect of a community safety supervision order is to impose on the person, for the period the order is in force, conditions contravention of which is an offence.
Note 1: The period must not be more than 3 years (see paragraph 395.13(5)(d)).
Note 2: See also sections 395.41 (detention under the Migration Act 1958 ) and 395.42 (effect of prison detention on community safety order).
395.6 Preconditions for community safety orders
Person is detained in custody in a prison
(1) A community safety order may be made in relation to a person if the person is detained in custody in a prison serving:
(a) a sentence of imprisonment for a serious violent or sexual offence; or
(b) a sentence of imprisonment for any other offence.
Person is in the community
(2) A community safety order may be made in relation to a person if the person is in the community.
Community safety detention order is in force
(3) A community safety order may be made in relation to a person if a community safety detention order is in force in relation to the person.
395.7 Treatment of a serious offender in a prison under a community safety detention order
(1) A serious offender who is detained in custody in a prison under a community safety detention order must be treated in a way that is appropriate to the offender's status as a person who is not serving a sentence of imprisonment, subject to any reasonable requirements necessary to maintain:
(a) the management, security or good order of the prison; and
(b) the safe custody or welfare of the offender or any prisoners; and
(c) the safety and protection of the community.
(2) The offender must not be accommodated or detained in the same area or unit of the prison as persons who are in prison for the purpose of serving sentences of imprisonment unless:
(a) it is reasonably necessary for the purposes of rehabilitation, treatment, work, education, general socialisation or other group activities; or
(b) it is necessary for the security or good order of the prison or the safe custody or welfare of the offender or prisoners; or
(c) it is necessary for the safety and protection of the community; or
(d) the offender elects to be so accommodated or detained.
(3) This section does not apply if the offender is serving a sentence of imprisonment.
Subdivision C — Making community safety orders
395.8 Applying for a community safety order
(1) The Immigration Minister, or a legal representative of the Immigration Minister, (the applicant ) may apply to a Supreme Court of a State or Territory for either of the following:
(a) a community safety detention order in relation to a serious offender;
(b) a community safety supervision order in relation to a serious offender.
Note: The court may make a community safety supervision order under section 395.13 even if a community safety detention order is applied for.
(2) The Immigration Minister must ensure that reasonable inquiries are made to ascertain any facts known to any Commonwealth law enforcement officer that would reasonably be regarded as supporting a finding that:
(a) if the application is for a community safety detention order—neither a community safety detention order nor a community safety supervision order should be made in relation to the offender; or
(b) if the application is for a community safety supervision order—the community safety supervision order should not be made in relation to the offender.
Content of application
(3) The application must:
(a) include any report or other document that the applicant intends, at the time of the application, to rely on in relation to the application; and
(b) include:
(i) a copy of any material in the possession of the applicant; and
(ii) a statement of any facts that the applicant is aware of;
that would reasonably be regarded as supporting a finding that the order or orders mentioned in paragraph (2)(a) or (b) (as the case requires) should not be made, except any information, material or facts that are likely to be protected by public interest immunity (whether the claim for public interest immunity is to be made by the Immigration Minister or any other person); and
(c) include information about the offender's age; and
(d) if the offender is a holder under the Migration Act 1958 of a visa that is subject to one or more conditions—specify the conditions; and
(e) request that the order be in force for a specified period; and
(f) if the application is for a community safety supervision order—include the following material:
(i) a copy of the proposed conditions;
(ii) an explanation as to why each of the proposed conditions should be imposed on the offender;
(iii) if the Immigration Minister is aware of any facts relating to why any of those conditions should not be imposed on the offender—a statement of those facts, except any facts that are likely to be protected by public interest immunity (whether the claim for public interest immunity is to be made by the Immigration Minister or any other person);
(iv) if the offender is subject to an order under a law of a State or Territory that is equivalent to a community safety order—a copy of that order; and
(g) if a report was obtained under section 395.43 in relation to the offender—include a copy of the report.
Note 1: For paragraph (3)(e), the period must not be more than 3 years (see subsection 395.12(5) and paragraph 395.13(5)(d)).
Note 2: Evidence may also be adduced later under section 395.28.
Note 3: A copy of the application must be given to the serious offender under section 395.29.
395.9 Appointment of and assessment by relevant expert
(1) If an application for a community safety order is made under section 395.8 to a Supreme Court of a State or Territory in relation to a serious offender, the Court must hold a preliminary hearing to determine whether to appoint one or more relevant experts.
(2) The hearing must be held within 28 days after a copy of the application is given to the offender under subsection 395.29(2).
(3) The Court may, either at the preliminary hearing or at any later time in the proceeding, appoint one or more relevant experts if the Court considers that doing so is likely to materially assist the Court in deciding whether to make a community safety order in relation to the offender.
(4) The Immigration Minister or the offender, or a legal representative of the Immigration Minister or the offender, may nominate one or more relevant experts for the purposes of subsection (3).
(5) The relevant expert who is appointed must:
(a) conduct an assessment of the risk of the offender committing a serious violent or sexual offence; and
(b) provide a report of the expert's assessment to the Court, the Immigration Minister and the offender.
Note: For giving documents to a serious offender who is detained in custody, see section 395.33.
Attendance and participation at assessment
(6) The offender must attend the assessment.
Note: The assessment may be conducted over a number of sessions.
(7) The answer to a question or information given at the assessment, and answering a question or giving information at the assessment, are not admissible in evidence against the offender in:
(a) any criminal proceedings, except any proceedings relating to sentencing for an offence against this Division (including any appeal in relation to those proceedings); or
(b) any civil proceedings against the offender, except proceedings under this Division (including any appeal in relation to those proceedings).
(8) The Court must ensure that the effect of subsections (6), (7) and (11) is explained to the offender.
Contents of report
(9) The expert's report may include any one or more of the following matters:
(a) the expert's assessment of the risk of the offender committing a serious violent or sexual offence;
(b) reasons for that assessment;
(c) the pattern or progression to date of behaviour on the part of the offender in relation to serious violent or sexual offences, and an indication of the nature of any likely future behaviour on the offender's part in relation to serious violent or sexual offences;
(d) efforts made to date by the offender to address the causes of the offender's behaviour in relation to serious violent or sexual offences, including whether the offender has actively participated in any rehabilitation or treatment programs;
(e) if the offender has participated in any rehabilitation or treatment programs—whether or not this participation has had a positive effect on the offender;
(f) any relevant background of the offender, including developmental and social factors;
(g) factors that might increase or decrease any risks that have been identified of the offender committing a serious violent or sexual offence;
(h) any other matters the expert considers relevant.
Other relevant experts
(10) This section does not prevent the Immigration Minister or the offender, or a legal representative of the Immigration Minister or the offender, from calling their own relevant expert as a witness in the proceeding.
Assessments conducted for certain purposes
(11) Without limiting subsection (7), an assessment of an offender conducted under paragraph (5)(a), and the report of the assessment, may be taken into account in proceedings to make, vary or review any community safety order in relation to the offender.
395.10 Determining an application for a community safety order
Determining applications for community safety detention orders
(1) If an application is made under section 395.8 to the Supreme Court of a State or Territory for a community safety detention order in relation to a serious offender, the Court may determine the application by:
(a) making a community safety detention order under section 395.12; or
(b) making a community safety supervision order under section 395.13; or
(c) dismissing the application.
Determining applications for community safety supervision orders
(2) If an application is made under section 395.8 to the Supreme Court of a State or Territory for a community safety supervision order in relation to a serious offender, the Court may determine the application by:
(a) making a community safety supervision order under section 395.13; or
(b) dismissing the application.
395.11 Matters a Court must have regard to in making a community safety order
(1) In deciding whether the Court is satisfied as referred to in paragraph 395.12(1)(b) or 395.13(1)(b) in relation to a serious offender, a Supreme Court of a State or Territory must have regard to the following matters:
(a) the object of this Division;
(b) any report of an assessment received from a relevant expert, and the level of the offender's participation in the assessment, under:
(i) section 395.9; or
(ii) section 395.43;
(c) the results of any other assessment conducted by a relevant expert of the risk of the offender committing a serious violent or sexual offence, and the level of the offender's participation in any such assessment;
(d) any report, relating to the extent to which the offender can reasonably and practicably be managed in the community, that has been prepared by:
(i) the relevant State or Territory corrective services; or
(ii) any other person or body who is competent to assess that extent;
(e) any treatment or rehabilitation programs in which the offender has had an opportunity to participate, and the level of the offender's participation in any such programs;
(f) the level of the offender's compliance with any obligations to which the offender is or has been subject while:
(i) on release on parole for any serious violent or sexual offence; or
(ii) subject to a community safety order;
(g) the level of the offender's compliance with any conditions to which a visa that the offender is, or has been, a holder of under the Migration Act 1958 is or has been subject;
(h) the offender's history of any prior convictions for, and findings of guilt made in relation to, any serious violent or sexual offence;
(i) if information is available about the offender's history of any prior convictions for, and findings of guilt made in relation to, any serious foreign violent or sexual offence—that information;
(j) the views of the sentencing court at the time any sentence for any serious violent or sexual offence was imposed on the offender;
(k) if information is available about the views of the sentencing court at the time any sentence for any serious foreign violent or sexual offence was imposed on the offender—that information;
(l) whether the offender is subject to any order under a law of a State or Territory that is equivalent to a community safety order, and if so, the conditions of the order;
(m) any other information as to the risk of the offender committing a serious violent or sexual offence.
(2) Subsection (1) does not prevent the Court from having regard to any other matter the Court considers relevant.
(3) To avoid doubt, section 395.27 (civil evidence and procedure rules in relation to community safety order proceedings) applies to the Court's consideration of the matters referred to in subsections (1) and (2) of this section.
395.12 Making a community safety detention order
(1) A Supreme Court of a State or Territory may make a written order under this subsection if:
(a) an application is made in accordance with section 395.8 for a community safety detention order in relation to a serious offender; and
(b) after having regard to matters in accordance with section 395.11, the Court is satisfied to a high degree of probability, on the basis of admissible evidence, that the offender poses an unacceptable risk of seriously harming the community by committing a serious violent or sexual offence; and
(c) the Court is satisfied that there is no less restrictive measure available under this Division that would be effective in protecting the community from serious harm by addressing the unacceptable risk; and
(d) in a case where the offender is a holder under the Migration Act 1958 of a visa that is subject to conditions—the Court is satisfied that the conditions would not be effective in protecting the community from serious harm by addressing the unacceptable risk.
Note 1: The rules of evidence and procedure for civil matters apply when the Court has regard to matters in accordance with section 395.11, as referred to in paragraph (1)(b) of this section (see subsection 395.11(3) and section 395.27).
Note 2: For paragraph (1)(c), an example of a less restrictive measure that is available under this Division is a community safety supervision order. A Court can make a community safety supervision order under section 395.13 even if a community safety detention order was applied for (see subsection 395.10(1)).
(2) If the Court is not satisfied as mentioned in paragraph (1)(b) or (c) (or both), but is satisfied as mentioned in paragraph (1)(d), then the Court must:
(a) seek the following material from the Immigration Minister:
(i) a copy of the proposed conditions that would be sought for a community safety supervision order in relation to the offender;
(ii) an explanation as to why each of the proposed conditions should be imposed on the offender;
(iii) if the Immigration Minister is aware of any facts relating to why any of those conditions should not be imposed on the offender—a statement of those facts, except any facts that are likely to be protected by public interest immunity (whether the claim for public interest immunity is to be made by the Immigration Minister or any other person); and
(b) consider whether to make a community safety supervision order under section 395.13 in relation to the offender.
Note: A copy of the material must be given to the serious offender under section 395.29.
Onus of satisfying Court
(3) The Immigration Minister bears the onus of satisfying the Court of the matters referred to in paragraphs (1)(b), (c) and (d).
Period of order
(4) The order must specify the period during which it is in force.
Note: The order may be suspended during the period that it is in force if the offender is detained under the Migration Act 1958 (see section 395.41) or detained in custody in a prison other than as a result of the order (see section 395.42).
(5) The period must be a period of no more than 3 years that the Court is satisfied is reasonably necessary to protect the community from serious harm by addressing the unacceptable risk.
Court may make successive community safety detention orders
(6) To avoid doubt, subsection (5) does not prevent a Supreme Court of a State or Territory making a community safety detention order in relation to a serious offender that begins to be in force immediately after a previous community safety detention order in relation to the offender ceases to be in force.
395.13 Making a community safety supervision order
(1) A Supreme Court of a State or Territory may make a written order under this subsection, in accordance with sections 395.14 and 395.15, if:
(a) any of the following applies:
(i) an application is made in accordance with section 395.8 for a community safety supervision order in relation to a serious offender;
(ii) an application is made in accordance with section 395.8 for a community safety detention order in relation to a serious offender, and the Court is not satisfied as mentioned in paragraph 395.12(1)(b) or (c) (or both), but is satisfied as mentioned in paragraph 395.12(1)(d);
(iii) the Court has reviewed under section 395.25 a community safety detention order in relation to a serious offender and the Court is not satisfied as mentioned in paragraph 395.25(6)(a); and
(b) after having regard to matters in accordance with section 395.11, the Court is satisfied on the balance of probabilities, on the basis of admissible evidence, that the offender poses an unacceptable risk of seriously harming the community by committing a serious violent or sexual offence; and
(c) in a case where the offender is a holder under the Migration Act 1958 of a visa that is subject to conditions—the Court is satisfied that the conditions would not be effective in protecting the community from serious harm by addressing the unacceptable risk; and
(d) the Court is satisfied on the balance of probabilities that:
(i) each of the conditions; and
(ii) the combined effect of all of the conditions;
to be imposed on the offender by the order is reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the community from serious harm by addressing the unacceptable risk.
Determining whether conditions are reasonably necessary, appropriate and adapted
(2) For the purposes of paragraph (1)(d), in determining whether each of the conditions to be imposed on the offender by the order is reasonably necessary, and reasonably appropriate and adapted, the Court must take into account, as a paramount consideration in all cases, the object of this Division (see section 395.1).
(3) If the coming into effect of the order would result in the offender being taken to be granted a visa under section 76AA of the Migration Act 1958 , then, for the purposes of paragraph (1)(d) of this section, in determining whether each of the conditions to be imposed on the offender by the order is reasonably necessary, and reasonably appropriate and adapted, the Court must take into account the conditions to which the visa would be subject.
Onus of satisfying Court
(4) The Immigration Minister bears the onus of satisfying the Court of:
(a) the matters referred to in paragraphs (1)(b) and (d); and
(b) if paragraph (1)(c) applies—the matters referred to in paragraph (1)(c).
Content of order
(5) The order must:
(a) state that the Court is satisfied of:
(i) the matters mentioned in paragraphs (1)(b) and (d); and
(ii) if paragraph (1)(c) applies—the matters mentioned in paragraph (1)(c); and
(b) specify the name of the offender to whom the order relates; and
(c) specify all of the conditions, and any exemption conditions, that are to be imposed in accordance with section 395.14 or 395.15 on the offender by the order; and
(d) specify the period during which the order is to be in force, which must be a period of no more than 3 years that the Court is satisfied is reasonably necessary to protect the community from serious harm by addressing the unacceptable risk; and
(e) state that the offender's lawyer may request a copy of the order.
Note: The order may be suspended during the period that it is in force if the offender is detained under the Migration Act 1958 (see section 395.41) or detained in custody in a prison (see section 395.42).
Court may make successive community safety supervision orders
(6) To avoid doubt, paragraph (5)(d) does not prevent a Supreme Court of a State or Territory making a community safety supervision order in relation to a serious offender that begins to be in force immediately after a previous community safety supervision order, or community safety detention order, in relation to the offender ceases to be in force.
Automatic revocation of community safety detention orders etc.
(7) A community safety detention order that is in force in relation to a serious offender is revoked by force of this subsection if:
(a) a Court makes a community safety supervision order in relation to the offender; and
(b) the community safety detention order is in force immediately before the community safety supervision order begins to be in force.
395.14 Conditions of community safety supervision orders
(1) The conditions that a Court may impose on a serious offender by a community safety supervision order are:
(a) any conditions that the Court is satisfied; and
(b) those conditions whose combined effect the Court is satisfied;
on the balance of probabilities, are reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the community from serious harm by addressing the unacceptable risk of the offender committing a serious violent or sexual offence.
Note: The Court may, under section 395.15, specify conditions from which exemptions may be granted.
(2) If the offender is subject to an order under a law of a State or Territory that is equivalent to a community safety order, the Court must consider the conditions under that State or Territory order in imposing conditions in accordance with subsection (1).
General rules about conditions
(3) To avoid doubt, without limiting subsection 33(3A) of the Acts Interpretation Act 1901 , a condition imposed under this section may:
(a) prohibit or restrict specified conduct of the offender, or impose obligations on the offender; or
(b) impose restrictions and obligations on the offender in relation to classes of conduct, and prohibit other classes of that conduct; or
(c) impose different restrictions, obligations and prohibitions in relation to different classes of conduct; or
(d) for conduct that is prohibited by a condition described in a paragraph of subsection (5) of this section—impose restrictions and obligations on the offender in relation to that conduct instead of prohibiting that conduct; or
(e) for conduct described in a paragraph of subsection (5) or (7) of this section—impose different restrictions, obligations and prohibitions in relation to that conduct.
(4) A condition imposed under this section must not require the offender to remain at specified premises for more than 12 hours within any 24 hours.
General conditions
(5) Without limiting this section, the conditions that the Court may impose in accordance with subsection (1) include conditions relating to the following:
(a) that the offender not be present at one or more of the following:
(i) specified areas or places;
(ii) specified classes of areas or places;
(iii) any area or place determined by a specified authority;
(b) that the offender reside at specified premises, and not begin to reside at any other premises without the prior permission of a specified authority;
(c) that the offender remain at specified premises between specified times each day, or on specified days, subject to subsection (4);
(d) that the offender not leave the State or Territory in which the offender's residence is located;
(e) that the offender not change the offender's name, or use any name that is not specified in the order;
(f) that the offender not apply for any licence to operate equipment, machinery, a heavy vehicle or a weapon, or any licence to possess a weapon;
(g) that the offender not communicate or associate by any means (including through third parties) with one or more of the following:
(i) specified individuals;
(ii) specified classes of individuals;
(iii) any individuals determined by a specified authority;
(h) that the offender not access or use specified forms of telecommunication or other technology (including the internet);
(i) that the offender not possess or use specified articles or substances;
(j) that the offender not carry out specified activities;
(k) that the offender not engage in one or more of the following:
(i) specified work;
(ii) specified classes of work;
(iii) specified activities relating to specified work or classes of work;
(l) that the offender not in engage in any training or education without the prior permission of a specified authority;
(m) that the offender do any or all of the following:
(i) attend and participate in treatment, rehabilitation or intervention programs or activities;
(ii) undertake psychological or psychiatric assessment or counselling;
as specified in the order or as directed by a specified authority;
(n) that the offender attend and participate in interviews and assessments (including for the purposes of paragraph (m)) as specified in the order or as directed by a specified authority;
(o) that the offender allow the results of the interviews and assessments referred to in paragraph (n), and any other specified information, to be disclosed to a specified authority;
(p) that the offender provide specifiedinformation to a specified authority within a specified period or before a specified event;
(q) that the offender comply with any reasonable direction given to the offender by a specified authority in relation to any specified condition (whether or not the condition is imposed in accordance with this subsection).
Note: See also subsection (10) and section 395.2 in relation to references to premises, reside or residence, and work.
(6) If a condition of the order authorises a specified authority to give a direction, the specified authority may give a direction only if the specified authority is satisfied that the direction is reasonable in all the circumstances to give effect to:
(a) the condition; or
(b) the object of this Division (see section 395.1).
Conditions relating to monitoring and enforcement
(7) Without limiting this section, the conditions that the Court may impose in accordance with subsection (1) include conditions relating to the following:
(a) that the offender submit to testing by a specified authority in relation to the possession or use of specified articles or substances;
(b) that the offender allow the offender to be photographed by a specified authority;
(c) that the offender allow impressions of the offender's fingerprints to be taken by a specified authority;
(d) that the offender be subject to electronic monitoring (for example, by wearing a monitoring device at all times), and comply with directions given by a specified authority in relation to electronic monitoring;
(e) a condition that:
(i) the person carry at all times a specified mobile phone; and
(ii) the person be available to answer any call from a specified authority or, as soon as reasonably practicable, return a call that the person was unable to answer; and
(iii) the person comply with specified directions, or any directions given by a specified authority, in relation to the condition in subparagraph (i) or (ii);
(f) that the offender attend at places, and report to persons, at times, specified:
(i) in the order; or
(ii) by a specified authority;
(g) that the offender allow visits at specified premises from, and entry to specified premises by, a specified authority at any time for the purpose of ensuring the offender's compliance with a condition imposed in accordance with paragraph (5)(c);
(h) that the offender provide a specified authority with a schedule setting out the offender's proposed movements for a specified period and comply with that schedule during the period;
(i) that the offender allow any police officer to enter specified premises and:
(i) search the offender; and
(ii) search the offender's residence or any premises which the offender intends to be the offender's residence; and
(iii) search any other premises under the offender's control; and
(iv) seize any item found during those searches, including to allow the item to be examined forensically;
(j) that the offender facilitate access (including by providing passwords or in any other way) to one or more of the following:
(i) electronic equipment or technology;
(ii) any data held within, or accessible from, any electronic equipment or technology;
owned or controlled by the offender, for the purposes of a police officer searching and seizing any such equipment or accessing such data (or both).
Note 1: For paragraphs (b) and (c), restrictions apply to the use of photographs or impressions of fingerprints (see section 395.16).
Note 2: For paragraph (d), see also section 395.17 (obligations relating to monitoring devices).
(8) A power exercised under a condition imposed in accordance with subsection (7) (other than a power to give a direction) may be exercised only if the person exercising the power is satisfied that it is reasonably necessary to do so in order to:
(a) give effect to the order; or
(b) facilitate or monitor compliance with the order.
Access to lawyers
(9) This section does not affect the offender's right to contact, communicate or associate with the offender's lawyer unless the offender's lawyer is a specified individual, or an individual in a specified class of individuals, as mentioned in paragraph (5)(g). If the offender's lawyer is so specified, the offender may contact, communicate or associate with any other lawyer who is not so specified.
References to work
(10) In subsection (5), a reference to work includes a reference to voluntary work.
395.15 Conditions where exemptions may be granted
(1) A Supreme Court of a State or Territory that makes a community safety supervision order in relation to a serious offender may specify conditions included in the order that are to be exemption conditions.
(2) An exemption condition is a condition specified in the order from which the offender may apply for a temporary exemption.
(3) The Court may make provision in relation to applications for temporary exemptions.
(4) The offender may apply, in writing, to a specified authority for an exemption from an exemption condition. The application must:
(a) include a reason for the exemption; and
(b) comply with any other requirements provided for under subsection (3).
(5) If the offender so applies, the specified authority may:
(a) require further information to be provided by the offender before making a decision in relation to the application; and
(b) either:
(i) grant or refuse the exemption; or
(ii) grant the exemption subject to any reasonable directions specified in writing by the specified authority.
395.16 Treatment of photographs and impressions of fingerprints
(1) A photograph, or an impression of fingerprints, taken of or from a serious offender as mentioned in paragraph 395.14(7)(b) or (c) must be used only for the purpose of ensuring compliance with a community safety supervision order relating to the offender.
(2) The photograph or the impression must be destroyed if:
(a) no community safety supervision order has been in force in relation to the offender for 12 months; and
(b) either:
(i) no proceedings relating to a community safety supervision order relating to the offender were on foot in that 12-month period; or
(ii) proceedings relating to a community safety supervision order relating to the offender were discontinued or completed within that 12-month period.
(3) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct contravenes subsection (1).
Penalty: Imprisonment for 2 years.
395.17 Obligations relating to monitoring devices
Additional obligations on serious offender
(1) If the Court imposes a condition under paragraph 395.14(7)(d) in a community safety supervision order that a serious offender wear a monitoring device, then:
(a) the condition must require the offender to wear the monitoring device at all times; and
(b) the order must include the condition referred to in paragraph 395.14(7)(e); and
(c) the order must include a condition that the offender do all of the following:
(i) allow a specified authority to enter the offender's residence at any reasonable time for any purpose relating to the electronic monitoring of the offender;
(ii) allow a specified authority to install, repair or fit the monitoring device or any related monitoring equipment;
(iii) take the steps specified in the order (if any) and any other reasonable steps to ensure that the monitoring device and any related monitoring equipment are or remain in good working order;
(iv) if the offender becomes aware that the monitoring device and any related monitoring equipment are not in good working order—notify a specified authority as soon as reasonably practicable;
(v) allow a specified authority, police officer or corrective services officer to remove the monitoring device;
(vi) allow a police officer to remove any related monitoring equipment.
Powers of specified authorities and others
(2) After including the condition under paragraph 395.14(7)(d) in the order, the Court must also include in the order an authorisation for:
(a) one or more specified authorities to enter the offender's residence as specified in the order at any reasonable time for any purpose relating to the electronic monitoring of the offender; and
(b) one or more specified authorities to install, repair or fit the monitoring device and any related monitoring equipment; and
(c) one or more specified authorities or police officersto take the steps specified in the order to ensure that the device and any related monitoring equipment are or remain in good working order; and
(d) one or more specified authorities, police officersor corrective services officers to remove the monitoring device; and
(e) one or more police officers to remove any related monitoring equipment.
(3) If:
(a) a monitoring device is installed on the offender; and
(b) any of the following events occurs:
(i) the condition under paragraph 395.14(7)(d) is removed from the order;
(ii) the order ceases to be in force;
(iii) the offender is detained in custody;
the device and any related monitoring equipment may be removed in accordance with paragraph (2)(d) or (e) even though:
(c) for subparagraph (b)(i) or (ii)—no authorisation under subsection (2) is in force; or
(d) for subparagraph (b)(iii)—the offender is not required to comply with a condition of the order because of section 395.41 or 395.42.
Note: For the definition of detained in custody , see section 395.2.
Powers relating to monitoring devices and related electronic equipment
(4) Before exercising a power referred to in paragraph (2)(a), (b), (d) or (e), or subsection (3), a specified authority, police officer or corrective services officer must inform the offender:
(a) that the device and equipment are to be installed, repaired, fitted or removed (as the case requires); and
(b) of the proposed timing of the taking of the action; and
(c) that the offender may consent to the taking of the action; and
(d) that if consent is not given, reasonable force may be used to take the action, or to enter the offender's residence in order to take the action.
(5) If the offender does not give consent, reasonable force may be used by a police officer to take the action, or to enter the offender's residence in order to take the action.
395.18 Copy of a community safety supervision order must be given to serious offender's lawyer
(1) A copy of a community safety supervision order that is made under section 395.13 in relation to a serious offender must be given to the offender's lawyer as soon as practicable after being requested by the lawyer.
(2) This section does not entitle the lawyer to request, or be given a copy of, a document other than the order.
Subdivision D — Varying a community safety supervision order
395.19 Application for variations of community safety supervision orders
Requirement to apply for variation
(1) If the Immigration Minister is satisfied that a condition in a community safety supervision order in relation to a serious offender is no longer reasonably necessary, or reasonably appropriate and adapted, for the purpose of protecting the community from serious harm by addressing the unacceptable risk of the offender committing a serious violent or sexual offence, the Immigration Minister or a legal representative of the Immigration Minister must apply to a Supreme Court of a State or Territory to vary, under section 395.20, the order by:
(a) removing the condition; or
(b) varying the condition.
Note 1: The Immigration Minister or legal representative may also apply under subsection (2) for other variations of the order, including adding conditions.
Note 2: A copy of the application must be given to the offender under section 395.29.
Who may otherwise apply
(2) Any of the following persons (the applicant ) may (subject to subsection (1)) apply to a Supreme Court of a State or Territory to vary, under section 395.20, a community safety supervision order in relation to a serious offender, by adding, varying or removing one or more conditions mentioned in section 395.14:
(a) the Immigration Minister or a legal representative of the Immigration Minister;
(b) the offender or a legal representative of the offender.
Note: If the application is made by or on behalf of the Immigration Minister, a copy of the application must be given to the offender under section 395.29.
(3) An application under subsection (1) or (2) must be made to the Supreme Court of the State or Territory where the offender resides.
Note: See subsection 395.2(1) for the definition of reside .
Contents of application
(4) An application under subsection (1) or (2) must include:
(a) a copy of the conditions as sought to be varied; and
(b) if the applicant is the Immigration Minister or a legal representative of the Immigration Minister—the following material:
(i) an explanation as to why each condition that is sought to be added or varied should be added or varied;
(ii) if the Immigration Minister is aware of any facts relating to why any of those conditions should not be added or varied—a statement of those facts, except any facts that are likely to be protected by public interest immunity (whether the claim for public interest immunity is to be made by the Immigration Minister or any other person);
(iii) the outcomes and particulars of all previous applications made under this section (whether by or on behalf of the Immigration Minister or the offender) for variations of the order; and
(c) if the applicant is the offender or a legal representative of the offender—the outcomes and particulars of all previous applications made under this section by or on behalf of the offender for variations of the order; and
(d) if a report was obtained under section 395.43 in relation to the offender for the purposes of determining whether to apply for the variation—a copy of the report.
(5) If the applicant is the offender or a legal representative of the offender, the applicant:
(a) may also include in the application an explanation as to why each condition that is sought to be varied or removed should be varied or removed; and
(b) must cause a copy of the application to be served on the Immigration Minister within 2 business days after the application is made.
Adducing additional evidence
(6) The following persons may adduce additional evidence (including by calling witnesses or producing material), or make additional submissions, to the Court in relation to the application to vary the order:
(a) the Immigration Minister;
(b) one or more AFP members;
(c) the offender;
(d) one or more representatives of the offender.
(7) Subsection (6) does not otherwise limit the power of the Court to control proceedings in relation to an application to vary a community safety supervision order.
395.20 Varying a community safety supervision order (other than by consent)
(1) If an application is made in accordance with subsection 395.19(1) or (2), and subsection (2) of this section, to a Supreme Court of a State or Territory to vary a community safety supervision order in relation to a serious offender, the Court may vary the order, but only if:
(a) for an application for the order to be varied by adding or varying conditions—the Court is satisfied on the balance of probabilities that each of the conditions being added or varied is reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the community from serious harm by addressing the unacceptable risk of the offender committing a serious violent or sexual offence; and
(b) for an application for the order to be varied by removing conditions—the Court is not satisfied on the balance of probabilities that each of the conditions being removed is reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the community from serious harm by addressing the unacceptable risk of the offender committing a serious violent or sexual offence.
Note: See section 395.22 for the terms of a varied community safety supervision order.
(2) For the purposes of subsection (1), in determining whether each of the conditions to be added, varied or removed by the order is reasonably necessary, and reasonably appropriate and adapted, the Court must take into account, as a paramount consideration in all cases, the object of this Division (see section 395.1).
(3) The Immigration Minister bears the onus of satisfying the Court of the matters referred to in subsection (1).
Relevant experts
(4) The Court may appoint one or more relevant experts for the purposes of the proceedings relating to the application. If the Court does so, subsections 395.9(5) to (9) apply in relation to the proceedings.
(5) The Immigration Minister, the offender, or a legal representative of the Immigration Minister or offender, may nominate one or more relevant experts for the purposes of subsection (4).
(6) Subsection (4) does not prevent the Immigration Minister, the offender, or a legal representative of the Immigration Minister or offender, from calling another relevant expert as a witness in the proceedings.
395.21 Varying community safety supervision order by consent
(1) Any of the following persons (the applicant ) may apply to a Supreme Court of a State or Territory to vary a community safety supervision order in relation to a serious offender by varying or removing one or more conditions mentioned in section 395.14:
(a) the Immigration Minister or a legal representative of the Immigration Minister;
(b) the offender or a legal representative of the offender.
(2) The application must be made to the Court of the State or Territory where the offender resides.
Note: See subsection 395.2(1) for the definition of reside .
(3) The Court may vary the order if the Court is satisfied that:
(a) written consent to the variation has been given by:
(i) if the applicant is the Immigration Minister or a legal representative of the Immigration Minister—the serious offender; or
(ii) if the applicant is the offender or a legal representative of the offender—the Immigration Minister; and
(b) the variation does not involve adding any conditions to the order; and
(c) the variation is appropriate in the circumstances.
395.22 Terms of a varied community safety supervision order
A community safety supervision order in relation to a person that is varied under section 395.20, 395.21 or 395.26 must:
(a) state that the Court is satisfied:
(i) for a variation under subsection 395.20(1) or 395.21(3)—of the matters mentioned in that subsection; or
(ii) for a variation under section 395.26—of the matters mentioned in subsection 395.26(1), (3) or (4) (as the case requires); and
(b) specify the variations to the conditions that are to be made; and
(c) state the period during which the order, as varied, is in force; and
(d) state that the offender's lawyer may request a copy of the order.
Subdivision E — Review of community safety order
395.23 Periodic review of community safety order
When application for review must be made
(1) The Immigration Minister, or a legal representative of the Immigration Minister, must, before the end of the period referred to in subsection (2), apply to a Supreme Court of a State or Territory for a review of a community safety order that is in force in relation to a serious offender.
Note: A copy of the application must be given to the offender under section 395.29.
(2) The application must be made:
(a) before the end of 12 months after the order began to be in force (unless paragraph (b) or (c) applies); or
(b) if the order has been reviewed under this Subdivision by a Supreme Court of a State or Territory—before the end of 12 months after the most recent review ended (unless paragraph (c) applies); or
(c) if paragraph (a) or (b) would otherwise apply and, at the time described in that paragraph, the community safety order is suspended under section 395.42 because the offender is detained in custody in a prison—on or before the day the offender's detention in a prison ends.
(3) Despite subsection (1), an application for a review is not required if an application for a new community safety order in relation to the offender has been made and not withdrawn.
Review must be conducted before end of period
(4) On receiving the application, the Court must begin the review of the order before the end of that period.
Note: For the process for reviewing a community safety order, see section 395.25.
Where application must be made
(5) The application must be made to the Court of the State or Territory where:
(a) for a community safety detention order—the prison in which the offender is detained is located; or
(b) for a community safety supervision order—the offender resides.
Note: See subsection 395.2(1) for the definition of reside .
Order ceases to be in force if application not made
(6) If an application is not made in accordance with this section, the order ceases to be in force at the end of the period referred to in subsection (2).
395.24 Review of community safety order on application
(1) The following persons may apply to a Supreme Court of a State or Territory for review of a community safety order:
(a) the Immigration Minister or a legal representative of the Immigration Minister;
(b) a serious offender, or a legal representative of a serious offender, in relation to whom the community safety order is in force.
Note 1: For the process for reviewing a community safety order, see section 395.25.
Note 2: A copy of the application must be given to the serious offender under section 395.29.
(2) The application must include a copy of any report obtained under section 395.43 for the purposes of determining whether an application for a review of the community safety supervision order should be made.
(3) The Court may review the order if the Court is satisfied that:
(a) there are new facts or circumstances which would justify reviewing the order; or
(b) it would be in the interests of justice, having regard to the purposes of the order and the manner and effect of its implementation, to review the order.
(4) Otherwise, the Court must dismiss the application.
(5) The application must be made to the Court of the State or Territory where:
(a) for a community safety detention order—the prison in which the offender is detained is located; or
(b) for a community safety supervision order—the offender resides.
Note: See subsection 395.2(1) for the definition of reside .
395.25 Process for reviewing a community safety order
(1) This section applies if, under section 395.23 or 395.24, a Supreme Court of a State or Territory reviews a community safety order that is in force in relation to a serious offender.
Parties to the review
(2) The parties to the review are:
(a) the Immigration Minister; and
(b) the offender.
Relevant experts
(3) The Court may appoint one or more relevant experts for the purposes of the review. If the Court does so, subsections 395.9(5) to (9) apply in relation to the review.
(4) The Immigration Minister or the offender, or a legal representative of the Immigration Minister or the offender, may nominate one or more relevant experts for the purposes of subsection (3).
(5) Subsection (3) does not prevent the Immigration Minister or the offender, or a legal representative of the Immigration Minister or the offender, from calling their own relevant expert as a witness in the review.
Affirming or revoking the order
(6) The Court may affirm the order (including affirm the order with variations made under section 395.26) if, after having regard to the matters in section 395.11, the Court is satisfied that the Court:
(a) for a community safety detention order—could have made the order under section 395.12; or
(b) for a community safety supervision order—could have made the order under section 395.13, or could have made the order disregarding paragraph 395.13(1)(d).
Note: The rules of evidence and procedure for civil matters apply when the Court has regard to matters in accordance with section 395.11, as referred to in this subsection (see subsection 395.11(3) and section 395.27).
(7) If the review is of a community safety detention order, and the Court does not affirm the order under subsection (6), the Court must:
(a) consider making a community safety supervision order in relation to the offender under section 395.13; and
(b) seek the following material from the Immigration Minister:
(i) a copy of the proposed conditions that would be sought for a community safety supervision order;
(ii) an explanation as to why each of the proposed conditions should be imposed on the offender;
(iii) if the Immigration Minister is aware of any facts relating to why any of those conditions should not be imposed on the offender—a statement of those facts, except any facts that are likely to be protected by public interest immunity (whether the claim for public interest immunity is to be made by the Immigration Minister or any other person); and
(c) if the Court does not make a community safety supervision order in relation to the offender—revoke the community safety detention order.
Note: If the Court makes a community safety supervision order in relation to the offender, the community safety detention order is revoked under subsection 395.13(7).
(8) If the Court does not affirm a community safety supervision order under subsection (6), the Court must revoke the order.
Onus of satisfying Court
(9) The Immigration Minister must ensure that reasonable inquiries are made to ascertain any facts known to any Commonwealth law enforcement officer that would reasonably be regarded as supporting a finding that the order should not be affirmed.
(10) The Immigration Minister bears the onus of satisfying the Court of the matters referred to in section 395.12 or 395.13.
(11) The Immigration Minister, or the legal representative of the Immigration Minister, must present to the Court:
(a) a copy of any material in the possession of the Immigration Minister or legal representative; and
(b) a statement of any facts that the Immigration Minister or legal representative is aware of;
that would reasonably be regarded as supporting a finding that:
(c) the order should not be affirmed, or should not be affirmed in the terms in which the order is made; or
(d) if the court is considering making a community safety supervision order under subsection (7)—a community safety supervision order should not be made.
395.26 Varying community safety orders after review
Varying the period specified by a community safety order
(1) A Supreme Court of a State or Territory must vary a community safety order in relation to a serious offender to specify a shorter period for which the order will be in force if:
(a) the Court affirms the order under subsection 395.25(6); and
(b) the Court is not satisfied that the period currently specified is reasonably necessary to protect the community from serious harm by addressing the unacceptable risk of the offender committing a serious violent or sexual offence.
The shorter period must be a period that the Court is satisfied is reasonably necessary to address the unacceptable risk.
Note: See section 395.22 for the terms of a varied community safety supervision order.
Varying or removing conditions
(2) A Supreme Court of a State or Territory must vary, or remove, a condition imposed by a community safety supervision order if:
(a) the Court affirms the order under subsection 395.25(6); and
(b) the Court is not satisfied that the condition is reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the community from serious harm by addressing the unacceptable risk of the offender committing a serious violent or sexual offence.
(3) The Court must be satisfied that a condition that is varied under subsection (2) is (after the variation) reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the community from serious harm by addressing the unacceptable risk of the offender committing a serious violent or sexual offence.
Varying to add conditions
(4) The Court may vary a community safety supervision order to add one or more conditions if the Court is satisfied that the conditions are reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the community from serious harm by addressing the unacceptable risk of the offender committing a serious violent or sexual offence.
Object of this Division
(5) For the purposes of subsections (3) and (4), in determining whether a condition to be varied or imposed on the offender by the order is reasonably necessary, and reasonably appropriate and adapted, the Court must take into account, as a paramount consideration in all cases, the object of this Division (see section 395.1).
Onus of satisfying Court
(6) The Immigration Minister bears the onus of satisfying the Court of the matters referred to in subsection (1), (3) or (4).
Subdivision F — Provisions relating to community safety order proceedings
395.27 Civil evidence and procedure rules in relation to community safety order proceedings
(1) A Supreme Court of a State or Territory must, subject to subsection (2), apply the rules of evidence and procedure for civil matters during a community safety order proceeding.
(2) Despite anything in the rules of evidence and procedure, the Court may receive in evidence in the proceeding evidence of:
(a) the level of the serious offender's compliance with any conditions (however described) to which the offender is or has been subject while:
(i) on release on parole for any offence; or
(ii) subject to a community safety supervision order; and
(b) the offender's history of any prior convictions for, and findings of guilt made in relation to, any offence; and
(c) the level of the offender's compliance with any conditions to which a visa that the offender is, or has been, a holder of under the Migration Act 1958 is or has been subject.
395.28 Adducing evidence and making submissions
A party to a community safety order proceeding in a Supreme Court of a State or Territory may adduce evidence (including by calling witnesses or producing material), or make submissions, to the Court in relation to the proceeding.
395.29 Giving copies of applications etc. to serious offenders
(1) This section applies if the Immigration Minister, or a legal representative of the Immigration Minister, (the applicant ) applies to a Supreme Court of a State or Territory for:
(a) a community safety order; or
(b) a variation of a community safety supervision order under section 395.19; or
(c) a review of a community safety order;
in relation to a serious offender.
(2) Within 2 business days after the application is made, the applicant must (subject to sections 395.30 to 395.32) give a copy of the application to the offender personally, and to the offender's legal representative.
Note: For giving documents to a serious offender who is detained in custody, see section 395.33.
(3) If the Court seeks material from the Immigration Minister under paragraph 395.12(2)(a) or 395.25(7)(b), within 2 business days after the material is provided to the Court, the applicant must (subject to sections 395.30 to 395.32) give a copy of the material to the offender personally, and to the offender's legal representative.
(4) If:
(a) the community safety order is made or varied; and
(b) neither the offender nor a legal representative of the offender is present during the proceedings in which the order is made or varied;
the applicant must (subject to sections 395.30 to 395.32), within 2 business days after the order is made or varied, give to the offender personally, and to the offender's legal representative, a copy of the order that is made, or of the order as varied.
395.30 Information excluded from application or material — national security information
(1) This section applies if the Immigration Minister, or a legal representative of the Immigration Minister, (the applicant ) gives a copy of an application or material to a serious offender, or a serious offender's legal representative, (therecipient ) under subsection 395.29(2) or (3).
(2) The applicant is not required to include any information in the application or material if a Minister (the decision-maker ) is likely to:
(a) take any actions in relation to the information under the National Security Information (Criminal and Civil Proceedings) Act 2004 ; or
(b) seek an order of a court preventing or limiting disclosure of the information.
(3) However, the applicant must (subject to subsection (4)) give the recipient personally a complete copy of the application or material if any of the following events occurs:
(a) the decision-maker decides not to take any of the actions referred to in paragraph (2)(a) or (b);
(b) a Minister gives a certificate under Subdivision C of Division 2 of Part 3A of the National Security Information (Criminal and Civil Proceedings) Act 2004 ;
(c) a court makes an order in relation to any action taken by the decision-maker under paragraph (2)(a) or (b).
(4) Subsection (3) is subject to:
(a) the certificate referred to in paragraph (3)(b); or
(b) any order made by a court.
(5) The copy of the application or material must be given under subsection (3):
(a) within 2 business days of the event referred to in subsection (3); and
(b) within a reasonable period before:
(i) if the application is for a community safety order—the preliminary hearing referred to in section 395.9; or
(ii) if the application is for a variation or review of a community safety order—the hearing on the application.
395.31 Information excluded from application or material — public interest immunity
(1) This section applies if:
(a) the Immigration Minister, or a legal representative of the Immigration Minister, (the applicant ) gives a copy of an application or material to a serious offender, or a serious offender's legal representative, under subsection 395.29(2) or (3); and
(b) information (however described) is excluded from the application or material on the basis of public interest immunity.
(2) The applicant must give written notice to the offender, and the offender's legal representative, personally stating that the information has been excluded on the basis of public interest immunity. The notice must be given at the time that a copy of the application or material is given to the offender or legal representative.
(3) To avoid doubt, nothing in this section imposes an obligation on the offender to satisfy the Court that a claim of public interest immunity should not be upheld.
Note: The offender may seek to access any information, material or facts that are likely to be protected by public interest immunity (for example, through a subpoena). Under the law of public interest immunity, the person claiming the immunity must make and substantiate the claim, and satisfy the Court that the claim should be upheld.
395.32 Information excluded from application and material
(1) This section applies if:
(a) the Immigration Minister, or a legal representative of the Immigration Minister, (the applicant ) is required to give a copy of an application or material to a serious offender, or a serious offender's legal representative, under subsection 395.29(2) or (3); and
(b) the application or material contains any of the following material ( relevant material ):
(i) terrorism material within the meaning of paragraph 105A.14D(1)(b);
(ii) child abuse material within the meaning of Part 10.6;
(iii) abhorrent violent material within the meaning of Subdivision H of Division 474.
(2) The applicant may apply to the Supreme Court of a State or Territory referred to in subsection 395.29(1) for an order in relation to the manner in which the relevant material is to be dealt with.
(3) The Court may make an order in relation to the manner in which the relevant material is to be dealt with, including that the relevant material:
(a) be provided to the offender's legal representative; or
(b) be available for inspection by the offender at specified premises.
395.33 Giving documents to serious offenders who are detained in custody
(1) A document that is required to be given under this Division to a serious offender who is detained in custody is taken to have been given to the offender at the time referred to in paragraph (3)(b) if the document is given to the following person (the recipient ):
(a) the legal representative of the offender;
(b) if the offender does not have a legal representative—the chief executive officer (however described) of the prison or other facility in which the offender is detained, or a delegate of the chief executive officer.
(2) The recipient must, as soon as reasonably practicable, give the document to the offender personally.
(3) Once the recipient has done so, the recipient must notify the Court and the person who gave the recipient the document, in writing:
(a) that the document has been given to the offender; and
(b) of the day that document was so given.
395.34 When a serious offender is unable to engage a legal representative
(1) This section applies if:
(a) a community safety order proceeding relating to a serious offender is before a Supreme Court of a State or Territory; and
(b) the offender, due to circumstances beyond the offender's control, is unable to engage a legal representative in relation to the proceeding.
(2) The Court may make either or both of the following orders:
(a) an order staying the proceeding for such period and subject to such conditions as the Court thinks fit;
(b) an order requiring the Commonwealth to bear, in accordance with the regulations (if any), all or part of the reasonable costs and expenses of the offender's legal representation for the proceeding.
(3) The regulations may prescribe matters that the Court may, must or must not take into account in determining either or both of the following:
(a) whether circumstances are beyond the offender's control;
(b) reasonable costs and expenses of the offender's legal representation for the proceeding.
(4) This section does not limit any other power of the Court.
395.35 Reasons for decisions
A Supreme Court of a State or Territory that makes a community safety order decision in a community safety order proceeding must:
(a) state the reasons for its decision; and
(b) cause those reasons to be entered in the records of the Court; and
(c) cause a copy of any order it made to be provided to each party to the proceeding.
Note: See also subsection 395.2(4) for when a Court makes a community safety order decision.
395.36 Right of appeal
(1) An appeal lies to the court of appeal (however described) of a State or Territory if:
(a) the Supreme Court of the State or Territory makes a community safety order decision; and
(b) the court of appeal has jurisdiction to hear appeals from the Supreme Court in relation to civil matters.
(2) The appeal is to be by way of rehearing. In particular, in relation to the appeal, the court of appeal:
(a) subject to this subsection, has all the powers, functions and duties that the Supreme Court has in relation to the relevant community safety order proceedings; and
(b) may receive further evidence as to questions of fact (orally in court, by affidavit or in any other way) if the court of appeal is satisfied that there are special grounds for doing so.
(3) The appeal against the decision of the Supreme Court may be made:
(a) as of right, within 28 days after the day on which the decision was made; or
(b) by leave, within such further time as the court of appeal allows.
(4) The making of the appeal does not stay the operation of the order.
(5) This section does not limit any other right of appeal that exists apart from this section.
395.37 Consequences of sentences ending or orders ceasing to be in force
(1) This section applies in relation to a community safety order proceeding if:
(a) the proceeding is any of the following:
(i) a proceeding on an application for a community safety order in relation to a serious offender;
(ii) an appeal against a decision to dismiss such an application;
(iii) an appeal against a decision to revoke a community safety order in relation to a serious offender;
(iv) an appeal against a decision (including in a review of such an order) to specify a particular period for which such an order will be in force;
(v) an appeal against a decision under section 395.34 to stay a community safety order proceeding in relation to a serious offender (including a decision under that section to stay a proceeding for a specified period or to impose a specified condition); and
(b) before the application or appeal is determined (whether before or after the appeal is made) one of the following events occurs:
(i) a sentence of imprisonment referred to in subsection 395.6(1) ends;
(ii) a community safety order in relation to the offender ceases to be in force;
(iii) a community safety order in force in relation to the offender was revoked as referred to in subparagraph (a)(iii) of this subsection.
(2) For the purposes of the community safety order proceeding, the offender is taken to remain a serious offender:
(a) who is serving a sentence of imprisonment; or
(b) in relation to whom a community safety order is in force;
despite the event in subsection (1) occurring.
Power of police officer to detain serious offender
(3) If a community safety detention order is in force in relation to the offender at any time after the offender is released as mentioned in paragraph (1)(b):
(a) any police officer may take the offender into custody; and
(b) any police officer may detain the offender;
for the purpose of giving effect to the order.
(4) A police officer, in:
(a) taking the offender into custody; or
(b) detaining the offender;
under subsection (3) has the same powers and obligations as the police officer would have if the police officer were arresting the offender, or detaining the offender, for an offence.
(5) In subsection (4):
offence means:
(a) if the police officer is an AFP member—an offence against a law of the Commonwealth; or
(b) if the police officer is not an AFP member—an offence against a law of the State or Territory of whose police force the police officer is a member.
Subdivision G — Offences relating to community safety supervision orders
395.38 Offence for contravening a community safety supervision order
(1) A person commits an offence if:
(a) a community safety supervision order is in force in relation to the person, and not suspended under section 395.41 or 395.42; and
(b) the person engages in conduct; and
(c) the conduct contravenes a condition the order imposes; and
(d) if the condition is an exemption condition—there is no exemption in force at the time the conduct is engaged in that exempts the person from the application of the condition.
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
(2) A person commits an offence if:
(a) a community safety supervision order is in force in relation to the person, and not suspended under section 395.41 or 395.42; and
(b) the order includes an exemption condition; and
(c) an exemption is in force in relation to the condition; and
(d) a direction is specified in relation to the exemption condition under subparagraph 395.15(5)(b)(ii); and
(e) the person engages in conduct; and
(f) the conduct contravenes the direction.
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
(3) Subsections (1) and (2) do not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3)).
395.39 Offence relating to monitoring devices
(1) A person commits an offence if:
(a) a community safety supervision order is in force in relation to the person, and not suspended under section 395.41 or 395.42; and
(b) the order requires the person to wear a monitoring device; and
(c) the person engages in conduct; and
(d) the conduct results in interference with, or disruption or loss of, a function of the monitoring device or any related monitoring equipment.
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
(2) A person (the perpetrator ) commits an offence if:
(a) the perpetrator knows that, or is reckless as to whether, a community safety supervision order is in force in relation to another person; and
(b) the order is not suspended under section 395.41 or 395.42; and
(c) the perpetrator knows that, or is reckless as to whether, the order requires the other person to wear a monitoring device; and
(d) the perpetrator engages in conduct; and
(e) the conduct results in interference with, or disruption or loss of, a function of the monitoring device or any related monitoring equipment.
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
(3) Strict liability applies in relation to paragraph (2)(b).
(4) Subsections (1) and (2) do not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3)).
395.40 Mandatory 1 year imprisonment for offences
If a person is convicted of an offence against section 395.38 or 395.39, the Court must impose a sentence of imprisonment of at least 1 year.
Subdivision H — Miscellaneous
395.41 Detention under the Migration Act 1958
(1) The fact that:
(a) a community safety order is in force in relation to a serious offender; or
(b) a serious offender is detained in accordance with a community safety detention order;
does not prevent the offender being detained under the Migration Act 1958 .
Note: For example, the offender may be detained under the Migration Act 1958 if there is a real prospect of the removal of the offender from Australia becoming practicable in the reasonably foreseeable future.
Effect of detention on community safety orders
(2) A community safety detention order in relation to a serious offender is suspended during the period that the offender is detained under the Migration Act 1958 .
(3) A community safety supervision order in relation to a serious offender is suspended during the period that the offender is detained under the Migration Act 1958 .
Effect of suspension
(4) A community safety order continues to be in force during the period in which the order is suspended under this section.
(5) However, the offender is not required to comply with any condition in a community safety supervision order during the period that the order is suspended.
395.42 Effect of prison detention on community safety order
Effect of prison detention on community safety orders
(1) A community safety detention order in relation to a serious offender is suspended during the period that the offender is detained in custody in a prison other than as a result of the order.
Note: For the definition of detained in custody in a prison , see section 395.2.
(2) A community safety supervision order in relation to a serious offender is suspended during the period that the offender is detained in custody in a prison.
Effect of suspension
(3) A community safety order continues to be in force during the period in which the order is suspended under this section.
(4) However, the offender is not required to comply with any condition in a community safety supervision order during the period that the order is suspended.
395.43 Immigration Minister may direct serious offenders to be assessed
(1) The Immigration Minister may direct any of the following serious offenders to be subject to an assessment of the risk of the person committing a serious violent or sexual offence:
(a) a serious offender in relation to whom an application for a community safety order could be made;
(b) a serious offender in relation to whom a community safety order is in force.
(2) The Immigration Minister may appoint a relevant expert to conduct the assessment, and provide a report, for the purposes of determining whether:
(a) an application for a community safety order in relation to the offender should be made; or
(b) an application for a variation or review of a community safety order in relation to the offender should be made.
(3) The relevant expert who is appointed must:
(a) conduct an assessment of the risk of the offender committing a serious violent or sexual offence; and
(b) provide a report of the expert's assessment to the Immigration Minister.
Note: For giving documents to a serious offender who is detained in custody, see section 395.33.
Attendance and participation at assessment
(4) The offender must attend the assessment.
Note: The assessment may be conducted over a number of sessions.
(5) The answer to a question or information given at the assessment, and answering a question or giving information at the assessment, are not admissible in evidence against the offender in:
(a) any criminal proceedings, except any proceedings relating to sentencing for an offence against this Division (including any appeal in relation to those proceedings); or
(b) any civil proceedings against the offender, except proceedings under this Division (including any appeal in relation to those proceedings).
(6) The Immigration Minister must ensure that the effect of subsections (4), (5) and (8) is explained to the offender.
Contents of report
(7) The expert's report may include any one or more of the following matters:
(a) the expert's assessment of the risk of the offender committing a serious violent or sexual offence;
(b) reasons for that assessment;
(c) the pattern or progression to date of behaviour on the part of the offender in relation to serious violent or sexual offences, and an indication of the nature of any likely future behaviour on the offender's part in relation to serious violent or sexual offences;
(d) efforts made to date by the offender to address the causes of the offender's behaviour in relation to serious violent or sexual offences, including whether the offender has actively participated in any rehabilitation or treatment programs;
(e) if the offender has participated in any rehabilitation or treatment programs—whether or not this participation has had a positive effect on the offender;
(f) any relevant background of the offender, including developmental and social factors;
(g) factors that might increase or decrease any risks that have been identified of the offender committing a serious violent or sexual offence;
(h) any other matters the expert considers relevant.
Assessments conducted for certain purposes
(8) Without limiting subsection (5), an assessment of an offender conducted under paragraph (3)(a), and the report of the assessment, may be taken into account:
(a) by the Immigration Minister in determining whether to make any application for a community safety order, or any application for a variation or review of a community safety order, in relation to the offender; and
(b) by the Court in proceedings to make, vary or review any community safety order in relation to the offender.
395.44 Sharing information
Requesting information
(1) The Immigration Minister may request a person prescribed by the regulations for the purposes of this subsection to give the Immigration Minister information (including personal information) that the Immigration Minister reasonably believes to be relevant to the administration or execution of this Division.
(2) The request need not be in writing.
(3) Despite any law of the Commonwealth, a State or a Territory (whether written or unwritten), the person may provide the information to the Immigration Minister.
Disclosing information
(4) The Immigration Minister may disclose information to a person prescribed by the regulations for the purposes of this subsection if:
(a) the information was acquired by any of the following in the exercise of a power under, or the performance of a function or duty in connection with, this Division:
(i) the Immigration Minister;
(ii) a legal representative of the Immigration Minister;
(iii) the Secretary of the Department administered by the Immigration Minister;
(iv) an APS employee in the Department administered by the Immigration Minister; and
(b) the Immigration Minister reasonably believes that the disclosure is necessary to enable the person to exercise the person's powers, or to perform the person's functions or duties; and
(c) if the regulations provide that information may be disclosed to the person only if specified circumstances are met—those circumstances are met.
(5) Subsection (4) applies despite any other law of the Commonwealth, a State or a Territory (whether written or unwritten).
395.45 Sharing information relating to community safety supervision orders
(1) An AFP member may disclose information (including personal information), to a person employed or engaged by a body covered by an arrangement under subsection 395.48(1), for the purpose of facilitating the performance of any functions or the exercise of any powers in relation to community safety supervision orders.
(2) A person (the first person ) employed or engaged by a body covered by an arrangement under subsection 395.48(1) may disclose information (including personal information) to another person if the first person reasonably believes that the disclosure is authorised by the arrangement.
(3) This section applies despite any other law of the Commonwealth, a State or a Territory (whether written or unwritten).
395.46 Delegation by the Immigration Minister
The Immigration Minister may, in writing, delegate any of the Immigration Minister's powers or functions under section 395.44 to any of the following persons:
(a) the Secretary of the Department administered by the Immigration Minister;
(b) any APS employee in that Department who performs duties in connection with the administration or execution of this Division.
395.47 Arrangement with States and Territories
(1) The Immigration Minister may arrange for a serious offender in relation to whom a community safety detention order is in force to be detained in a prison of a State or Territory.
(2) If an arrangement is made under subsection (1), the community safety detention order is taken to authorise the chief executive officer (however described) of the prison to detain the offender in the prison while the order is in force.
395.48 Arrangements by Australian Federal Police Commissioner for functions and powers relating to community safety supervision orders
(1) The Commissioner of the Australian Federal Police may make an arrangement with a State or Territory, or any other body, for the performance of any functions or the exercise of any powers in relation to community safety supervision orders.
(2) Without limiting subsection (1), for the purposes of section 395.45, the arrangement may authorise a person employed or engaged by a body covered by the arrangement to disclose information (including personal information).
(3) The Commissioner of the Australian Federal Police may, in writing, delegate to a senior AFP member the Commissioner's powers under subsection (1).
395.49 Annual report
(1) The Immigration Minister must, as soon as practicable after each 30 June, cause a report to be prepared about the operation of this Division during the year ended on that 30 June.
(2) Without limiting subsection (1), a report relating to a year must include the number of each of the following:
(a) applications for each kind of community safety order made during the year;
(b) each kind of community safety order made during the year;
(c) applications for review of each kind of community safety order made by serious offenders during the year;
(d) applications for review of each kind of community safety order made by the Immigration Minister, or a legal representative of the Immigration Minister, during the year;
(e) each kind of community safety order affirmed during the year;
(f) each kind of community safety order varied during the year;
(g) community safety orders revoked (including by operation of this Act) during the year.
(3) The Immigration Minister must cause copies of the report to be laid before each House of the Parliament within 15 sitting days of that House after the report is completed.
395.50 Effect of community safety detention orders on bail or parole laws
(1) A person in relation to whom a community safety detention order is in force is not eligible to be released on bail or parole until the order ceases to be in force.
(2) Subsection (1) does not prevent the person from applying, before the order ceases to be in force, to be released on bail if the person is charged with an offence while the order is in force.
Note: Although the person can apply to be released on bail, as a result of subsection (1), the person cannot be released on bail until the community safety detention order ceases to be in force.
(3) This section applies despite any law of the Commonwealth, a State or a Territory.
Surveillance Devices Act 2004
6 After paragraph 3(aaf)
Insert:
(aag) to establish procedures for law enforcement officers to obtain warrants for the installation and use of surveillance devices, or for access to data held in computers, in cases where a community safety supervision order is in force, and the use of the device or the access to the data would be likely to substantially assist in:
(i) achieving a Part 9.10 object; or
(ii) determining whether the community safety supervision order, or any succeeding community safety supervision order, has been, or is being, complied with; and
(aah) to establish procedures for law enforcement officers to obtain tracking device authorisations for the use of tracking devices in cases where a community safety supervision order is in force in relation to a person, and the use of a tracking device is to obtain information relating to the person for either of the following purposes:
(i) achieving a Part 9.10 object;
(ii) determining whether the community safety supervision order, or any succeeding community safety supervision order, has been, or is being, complied with; and
7 At the end of section 4
Add:
(7) To avoid doubt, it is intended that a warrant may be issued under this Act for the installation, use, maintenance or retrieval of a surveillance device, or for access to data held in a computer, if:
(a) consideration is being given, will be given, or is likely to be given, as to whether to apply for a Part 9.10 order, and the use of the device or the access to the data would be likely to assist in determining whether to apply for the order; or
(b) a community safety supervision order is in force, and the use of the device or the access to the data would be likely to substantially assist in:
(i) achieving a Part 9.10 object; or
(ii) determining whether the community safety supervision order, or any succeeding community safety supervision order, has been, or is being, complied with.
(8) To avoid doubt, a tracking device authorisation may be given under this Act for the use of a tracking device to obtain information relating to a person if:
(a) a community safety supervision order is in force in relation to the person; and
(b) the use is for either of the following purposes:
(i) achieving a Part 9.10 object;
(ii) determining whether the community safety supervision order, or any succeeding community safety supervision order, has been, or is being, complied with.
8 Subsection 6(1)
Insert:
community safety detention order has the same meaning as in Division 395 of theCriminal Code .
community safety supervision order has the same meaning as in Division 395 of theCriminal Code .
Immigration Minister means the Minister administering theMigration Act 1958 .
Part 9.10 information has the meaning given by subsection 50A(6).
Part 9.10 object means the protection of the community from serious harm by addressing the unacceptable risk of a serious offender committing a serious violent or sexual offence.
Part 9.10 order means a community safety detention order or a community safety supervision order.
Part 9.10 warrant means a surveillance device warrant or computer access warrant:
(a) issued to determine whether to apply for a Part 9.10 order; or
(b) issued in relation to a community safety supervision order that is or was in force.
9 Subsection 6(1) (paragraph (oa) of the definition of relevant proceeding )
After "orders)", insert "or Division 395 of the Criminal Code (community safety orders)".
10 Subsection 6(1)
Insert:
serious offender has the same meaning as in Division 395 of theCriminal Code .
serious violent or sexual offence has the same meaning as in Division 395 of theCriminal Code .
succeeding community safety supervision order has the meaning given by section 6F.
11 Subsection 6(1) (definition of unsworn application )
After "27A(13)", insert ", (13A)".
12 After section 6D
Insert:
6E When a community safety supervision order is taken to be in force
For the purposes of this Act, a community safety supervision order is taken to be in force in relation to a person if the order has been made but the period specified in the order under paragraph 395.13(5)(d) of the Criminal Code has not yet begun.
6F Succeeding community safety supervision order
(1) If a community safety supervision order is made in relation to a person, any later community safety supervision order in relation to the person is a succeeding community safety supervision order in relation to an earlier community safety supervision order.
(2) If 2 or more successive community safety supervision orders are made in relation to the same person, each later community safety supervision order is a succeeding community safety supervision order in relation to each earlier community safety supervision order.
13 After subsection 14(3C)
Insert:
Warrants sought for Part 9.10 order applications
(3D) A law enforcement officer (or another person on the officer's behalf) may apply for the issue of a surveillance device warrant if:
(a) a person is a serious offender in relation to whom an application for a Part 9.10 order could be made; and
(b) the officer suspects on reasonable grounds that there is an appreciable risk of the person committing a serious violent or sexual offence; and
(c) consideration is being given, will be given, or is likely to be given, by the Immigration Minister (or a person on behalf of the Immigration Minister), as to whether to apply for a Part 9.10 order in relation to the person; and
(d) the officer suspects on reasonable grounds that the use of a surveillance device to obtain information would be likely to assist in determining whether to apply for the Part 9.10 order.
Warrants sought for community safety supervision orders
(3E) A law enforcement officer (or another person on the officer's behalf) may apply for the issue of a surveillance device warrant if:
(a) a community safety supervision order is in force in relation to a person; and
(b) the law enforcement officer suspects on reasonable grounds that the use of a surveillance device to obtain information relating to the person would be likely to substantially assist in:
(i) achieving a Part 9.10 object; or
(ii) determining whether the community safety supervision order, or any succeeding community safety supervision order, has been, or is being, complied with.
Note: For community safety supervision orders that have been made but not come into force, see section 6E.
14 Subsection 14(4)
Omit "or (3C)", substitute ", (3C), (3D) or (3E)".
15 Paragraph 14(6)(a)
After "paragraph (3C)(b)", insert "or (3E)(b)".
16 After paragraph 16(1)(bc)
Insert:
(bd) in the case of a warrant sought to determine whether to apply for a Part 9.10 order—that the conditions in paragraphs 14(3D)(a) and (c) are met, and that there are reasonable grounds for the suspicions founding the application for the warrant (as mentioned in paragraphs 14(3D)(b) and (d)); and
(be) in the case of a warrant sought in relation to a community safety supervision order that is in force in relation to a person—that the order is in force in relation to the person, and that there are reasonable grounds for the suspicion founding the application for the warrant (as mentioned in paragraph 14(3E)(b)); and
17 Subsection 16(1) (at the end of the note)
Add "For community safety supervision orders that have been made but not come into force, see section 6E.".
18 After subsection 16(3)
Insert:
(3A) In addition to the matters in subsection (2), in determining whether to issue a surveillance device warrant sought to determine whether to apply for a Part 9.10 order in relation to a person, the eligible Judge or nominated AAT member must have regard to:
(a) the likely value of the information sought to be obtained in determining whether to apply for the Part 9.10 order; and
(b) any previous application for a surveillance device warrant sought or issued to determine whether to apply for a Part 9.10 order in relation to the person.
19 At the end of section 16
Add:
(5) In addition to the matters in subsection (2), in determining whether to issue a surveillance device warrant sought in a case where a community safety supervision order is in force in relation to a person, the eligible Judge or nominated AAT member must have regard to:
(a) the likely value of the information sought to be obtained, in:
(i) achieving a Part 9.10 object; or
(ii) determining whether the community safety supervision order, or any succeeding community safety supervision order, has been, or is being, complied with; and
(b) whether the use of the surveillance device in accordance with the warrant would be the means of obtaining the evidence or information sought to be obtained, that is likely to have the least interference with any person's privacy; and
(c) the possibility that the person has committed, is committing, or will commit, a serious violent or sexual offence; and
(d) the possibility that the person has contravened, is contravening, or will contravene, the community safety supervision order or a succeeding community safety supervision order; and
(e) any previous surveillance device warrant sought or issued on the basis of a community safety supervision order that is or was in force in relation to the person.
20 Paragraph 17(1)(a)
Omit "and (4)", substitute ", (3A), (4) and (5)".
21 After subsection 17(1AB)
Insert:
(1AC) If a surveillance device warrant is issued to determine whether to apply for a Part 9.10 order in relation to a person, the warrant must also specify the name of the person.
(1AD) If a warrant is issued on the basis of a community safety supervision order that is in force in relation to a person, the warrant must also specify the following details in relation to the order:
(a) the name of the person;
(b) the date the order was made;
(c) if (disregarding section 6E) the order is not already in force—when the order comes into force.
22 After subsection 17(1B)
Insert:
(1C) To avoid doubt, a warrant issued on the basis that a community safety supervision order is in force remains in force for the period mentioned in paragraph (1A)(a) even if the order ceases to be in force, provided that the order is replaced by a succeeding community safety supervision order.
Note: If there is no succeeding community safety supervision order, the warrant must be revoked (see section 21).
23 Subsection 19(4)
Omit "and (4)", substitute ", (3A), (4) and (5)".
24 Subsection 20(2)
Omit "or (3)", substitute ", (3) or (3A)".
25 After paragraph 21(2)(c)
Insert:
and (d) the warrant was not issued to determine whether to apply for a Part 9.10 order;
26 Subsection 21(2)
Omit "subsection (3)", substitute "subsections (3) and (3A)".
27 After subsection 21(3)
Insert:
(3A) The chief officer is required to take steps under subsection (2) in relation to a surveillance device warrant that is issued on the basis of a community safety supervision order that was in force in relation to a person only if neither the community safety supervision order, nor any succeeding community safety supervision order, is in force in relation to the person.
28 Subsection 21(5)
Omit "subsection (6)", substitute "subsections (6) and (7)".
29 At the end of section 21
Add:
(7) If the law enforcement officer to whom a warrant is issued, or who is primarily responsible for executing a warrant issued, on the basis that a community safety supervision order was in force in relation to a person believes that neither that order, nor any succeeding community safety supervision order, is in force in relation to the person, the officer must immediately inform the chief officer of the law enforcement agency to which the officer belongs or is seconded.
30 After subsection 27A(5A)
Insert:
Warrants sought for Part 9.10 order applications
(5B) A law enforcement officer (or another person on the officer's behalf) may apply for the issue of a computer access warrant if:
(a) a person is a serious offender in relation to whom an application for a Part 9.10 order could be made; and
(b) the officer suspects on reasonable grounds that there is an appreciable risk of the person committing a serious violent or sexual offence; and
(c) consideration is being given, will be given, or is likely to be given, by the Immigration Minister (or a person on behalf of the Immigration Minister), as to whether to apply for a Part 9.10 order in relation to the person; and
(d) the officer suspects on reasonable grounds that access to data held in a computer (the target computer ) would be likely to assist in determining whether to apply for the Part 9.10 order.
31 After subsection 27A(6)
Insert:
Warrants sought for community safety supervision orders
(6A) A law enforcement officer (or another person on the officer's behalf) may apply for the issue of a computer access warrant if:
(a) a community safety supervision order is in force in relation to a person; and
(b) the officer suspects on reasonable grounds that access to data held in a computer (the target computer ) to obtain information relating to the person would be likely to substantially assist in:
(i) achieving a Part 9.10 object; or
(ii) determining whether the community safety supervision order, or any succeeding community safety supervision order, has been, or is being, complied with.
Note: For community safety supervision orders that have been made but not come into force, see section 6E.
32 Subsection 27A(7)
Omit "or (6)", substitute ", (5B), (6) or (6A)".
33 After subsection 27A(13)
Insert:
Unsworn applications — warrants sought for community safety supervision orders
(13A) If a law enforcement officer believes that:
(a) immediate access to data held in the target computer referred to in subsection (6A) would be likely to substantially assist as described in paragraph (6A)(b); and
(b) it is impracticable for an affidavit to be prepared or sworn before an application for a warrant is made;
an application for a warrant under subsection (6A) may be made before an affidavit is prepared or sworn.
Applicant must provide information
34 Subsection 27A(14)
After "(13)", insert "or (13A)".
35 Subsection 27A(15)
Omit "or (6)", substitute ", (5B), (6) or (6A)".
36 After paragraph 27C(1)(da)
Insert:
(db) in the case of a computer access warrant sought to determine whether to apply for a Part 9.10 order—that the conditions in paragraphs 27A(5B)(a) and (c) are met, and there are reasonable grounds for the suspicions founding the application for the warrant (as mentioned in paragraphs 27A(5B)(b) and (d)); and
37 After paragraph 27C(1)(e)
Insert:
(ea) in the case of a computer access warrant sought in relation to a community safety supervision order that is in force in relation to a person—that the order is in force in relation to the person, and there are reasonable grounds for the suspicion founding the application for the warrant (as mentioned in paragraph 27A(6A)(b)); and
38 Subsection 27C(1) (at the end of the note)
Add "For community safety supervision orders that have been made but not come into force, see section 6E.".
39 At the end of section 27C
Add:
(5) In addition to the matters in subsection (2), in determining whether to issue a computer access warrant sought to determine whether to apply for a Part 9.10 order in relation to a person, the eligible Judge or nominated AAT member must have regard to:
(a) the likely value of the information sought to be obtained in determining whether to apply for the Part 9.10 order; and
(b) any previous application for a computer access warrant sought or issued to determine whether to apply for a Part 9.10 order in relation to the person.
(6) In addition to the matters in subsection (2), in determining whether to issue a computer access warrant sought in a case where a community safety supervision order is in force in relation to a person, the eligible Judge or nominated AAT member must have regard to:
(a) the likely value of the information sought to be obtained, in:
(i) achieving a Part 9.10 object; or
(ii) determining whether the community safety supervision order, or any succeeding community safety supervision order, has been, or is being, complied with; and
(b) whether the access to the data in accordance with the warrant would be the means of obtaining the evidence or information sought to be obtained, that is likely to have the least interference with any person's privacy; and
(c) the possibility that the person has committed, is committing, or will commit, a serious violent or sexual offence; and
(d) the possibility that the person has contravened, is contravening, or will contravene, the community safety supervision order or a succeeding community safety supervision order; and
(e) any previous computer access warrant sought or issued on the basis of a community safety supervision order that is or was in force in relation to the person.
40 Paragraph 27D(1)(a)
Omit "and (4)", substitute ", (4), (5) and (6)".
41 After subsection 27D(2)
Insert:
(2A) If a computer access warrant is issued to determine whether to apply for a Part 9.10 order in relation to a person, the warrant must also specify the name of the person.
(2B) If a computer access warrant is issued on the basis of a community safety supervision order that is in force in relation to a person, the warrant must also specify the following details:
(a) the name of the person;
(b) the date the community safety supervision order was made;
(c) if (disregarding section 6E) the order is not already in force—when the order comes into force.
42 After subsection 27D(3A)
Insert:
(3B) To avoid doubt, a warrant issued on the basis that a community safety supervision order is in force remains in force for the period mentioned in paragraph (3)(a) even if the order ceases to be in force, provided that the order is replaced by a succeeding community safety supervision order.
Note: If there is no succeeding community safety supervision order, the warrant must be revoked (see section 27H).
43 At the end of subsection 27E(4)
Add:
; or (f) in the case of a warrant sought to determine whether to apply for a Part 9.10 order—access to the data would be likely to assist as described in paragraph 27A(5B)(d); or
(g) in the case of a warrant issued on the basis of a community safety supervision order that is in force in relation to a person—access to the data would be likely to substantially assist as described in paragraph 27A(6A)(b).
44 Subsection 27F(4)
Omit "and (4)", substitute ", (4), (5) and (6)".
45 Subsection 27G(2)
Omit "or (3)", substitute ", (3) or (4)".
46 After paragraph 27H(2)(c)
Insert:
and (d) the warrant was not issued to determine whether to apply for a Part 9.10 order;
47 Subsection 27H(2)
Omit "subsection (3)", substitute "subsections (3) and (4)".
48 Subsection 27H(3)
Omit "surveillance device warrant", substitute "computer access warrant".
49 After subsection 27H(3)
Insert:
(4) The chief officer is required to take steps under subsection (2) in relation to a computer access warrant that is issued on the basis of a community safety supervision order that was in force in relation to a person only if neither the community safety supervision order, nor any succeeding community safety supervision order, is in force in relation to the person.
50 At the end of section 27H
Add:
(11) If the law enforcement officer to whom a warrant is issued, or who is primarily responsible for executing a warrant issued, on the basis that a community safety supervision order was in force in relation to a person believes that neither the community safety supervision order, nor any succeeding community safety supervision order, is in force in relation to the person, the officer must immediately inform the chief officer of the law enforcement agency to which the officer belongs or is seconded.
51 At the end of section 37
Add:
(5) If a community safety supervision order is in force in relation to a person, a State or Territory law enforcement officer acting in the course of the officer's duties may, without warrant, use an optical surveillance device to obtain information about the activities of the person for either of the following purposes:
(a) achieving a Part 9.10 object;
(b) determining whether the community safety supervision order has been, or is being, complied with;
if the use of that device does not involve:
(c) entry onto premises without permission; or
(d) interference without permission with any vehicle or thing.
52 After subsection 38(3A)
Insert:
(3B) If a community safety supervision order is in force in relation to a person, a State or Territory law enforcement officer acting in the course of the officer's duties may, without warrant, use a surveillance device to obtain information relating to the person for either of the following purposes:
(a) achieving a Part 9.10 object;
(b) determining whether the community safety supervision order has been, or is being, complied with;
if the use involves listening to, or recording, words spoken by a person, and the use is confined to circumstances where:
(c) the State or Territory law enforcement officer is the speaker of the words or is a person, or is included in a class or group of persons, by whom the speaker of the words intends, or should reasonably expect, the words to be heard; or
(d) the State or Territory law enforcement officer listens to or records the words with the consent, express or implied, of a person who is permitted to listen to or record the words:
(i) by paragraph (c); or
(ii) so far as subsection (7) applies in relation to the community safety supervision order—by that subsection.
53 At the end of section 38
Add:
(7) If:
(a) a community safety supervision order is in force in relation to a person; and
(b) a person (other than a State or Territory law enforcement officer) is assisting a State or Territory law enforcement officer who is acting in the course of the officer's duties in relation to either of the following purposes:
(i) achieving a Part 9.10 object;
(ii) determining whether the community safety supervision order has been, or is being, complied with;
the person assisting may, without warrant, use a surveillance device to obtain information relating to the person mentioned in paragraph (a) if:
(c) the use involves listening to, or recording, words spoken by a person; and
(d) the person assisting is the speaker of the words or is a person, or is included in a class or group of persons, by whom the speaker of the words intends, or should reasonably expect, the words to be heard.
54 After subsection 39(3B)
Insert:
(3C) If a community safety supervision order is in force in relation to a person, a law enforcement officer may, with the written permission of an appropriate authorising officer, use a tracking device without a warrant to obtain information relating to the person for either of the following purposes:
(a) achieving a Part 9.10 object;
(b) determining whether the community safety supervision order, or any succeeding community safety supervision order, has been, or is being, complied with.
55 Subsection 39(4)
Omit "and (3B)", substitute ", (3B) and (3C)".
56 Subsections 39(5) and (7)
Omit "or (3B)", substitute ", (3B) or (3C)".
57 After paragraph 40(1)(db)
Insert:
(dc) if the authorisation is given on the basis of a community safety supervision order that is in force in relation to a person—the following details:
(i) the name of the person;
(ii) the date the order was made;
(iii) if (disregarding section 6E) the order is not already in force—when the order comes into force; and
58 Subparagraph 45(5)(ia)(i)
Omit "or Division 105A (post-sentence orders)", substitute ", Division 105A (post-sentence orders) or Division 395 (community safety orders)".
59 After paragraph 45(5)(k)
Insert:
(ka) in the case of information:
(i) obtained under a warrant issued on the basis of a community safety supervision order that is or was in force; or
(ii) relating to an application for, the issue of, the existence of, or the expiration of, such a warrant; or
(iii) that is likely to enable the identification of a person, object or premises specified in such a warrant;
determining whether the community safety supervision order, or any succeeding community safety supervision order, has been, or is being, complied with;
(kb) in the case of information:
(i) obtained under a tracking device authorisation given on the basis of a community safety supervision order; or
(ii) relating to an application for, the giving of, the existence of, or the expiration of, a tracking device authorisation given on the basis of a community safety supervision order; or
(iii) that is likely to enable the identification of a person, object or premises specified in a tracking device authorisation given on the basis of a community safety supervision order;
determining whether the community safety supervision order, or any succeeding community safety supervision order, has been, or is being, complied with;
60 Subsection 45(5A)
Omit "and (j)", substitute ", (j) and (ka)".
61 Subsection 45(5A) (at the end of the note)
Add "or a Part 9.10 order".
62 Subsection 45(6)
Omit "(k)", substitute "(kb)".
63 After section 46A
Insert:
46B Destruction of records — information obtained before a community safety supervision order came into force
(1) If:
(a) a record or report is in the possession of a law enforcement agency; and
(b) the record or report comprises information obtained from the use of a surveillance device under:
(i) a surveillance device warrant; or
(ii) a tracking device authorisation;
issued or given on the basis of a community safety supervision order made in relation to a person; and
(c) in the case of a surveillance device warrant issued on the basis that a community safety supervision order was in force—the warrant was issued for the purpose, or for purposes that include the purpose, of obtaining information that would be likely to substantially assist in connection with determining whether the order, or any succeeding community safety supervision order, has been, or is being, complied with; and
(d) in the case of a tracking device authorisation—the authorisation was given to obtain information relating to the person for the purpose, or for purposes that include the purpose, of determining whether the community safety supervision order, or any succeeding community safety supervision order, has been, or is being, complied with; and
(e) the use of the surveillance device occurred when the community safety supervision order had been made, but had not come into force; and
(f) the chief officer of the agency is satisfied that none of the information obtained from the use of the surveillance device is likely to assist in connection with achieving a Part 9.10 object;
the chief officer of the agency must cause the record or report to be destroyed as soon as practicable.
(2) If:
(a) a record or report is in the possession of a law enforcement agency; and
(b) the record or report comprises information obtained from access to data under a computer access warrant issued on the basis of a community safety supervision order made in relation to a person; and
(c) the warrant was issued for the purpose, or for purposes that include the purpose, of obtaining information that would be likely to substantially assist in connection with determining whether the community safety supervision order, or any succeeding community safety supervision order, has been, or is being, complied with; and
(d) access to the data occurred when the community safety supervision order had been made, but had not come into force; and
(e) the chief officer of the agency is satisfied that none of the information obtained from accessing the data is likely to assist in connection with achieving a Part 9.10 object;
the chief officer of the agency must cause the record or report to be destroyed as soon as practicable.
(3) Section 6E does not apply to subsection (1) or (2) of this section.
64 After subparagraph 49(2)(b)(xb)
Insert:
(xc) if the warrant is a Part 9.10 warrant—give the details specified in subsection (2AA); and
65 After subsection 49(2A)
Insert:
(2AA) For the purposes of subparagraph (2)(b)(xc), the details are:
(a) if the warrant was issued to determine whether to apply for a Part 9.10 order—the benefit of the use of the device in determining whether to make the application; and
(b) if the warrant was issued on the basis of a community safety supervision order that is or was in force in relation to a person—the benefit of the use of the device in:
(i) achieving a Part 9.10 object; or
(ii) determining whether the community safety supervision order has been, or is being, complied with; and
(c) the general use to be made of any evidence or information obtained by the use of the device.
66 After subparagraph 49(2B)(b)(ix)
Insert:
(ixa) if the warrant is a Part 9.10 warrant—give the details specified in subsection (2CA); and
67 After subsection 49(2C)
Insert:
(2CA) For the purposes of subparagraph (2B)(b)(ixa), the details are:
(a) if the warrant was issued to determine whether to apply for a Part 9.10 order—the benefit of obtaining access to data held in the computer in determining whether to make the application; and
(b) if the warrant was issued on the basis of a community safety supervision order that is or was in force in relation to a person—the benefit of obtaining access to data held in the computer in:
(i) achieving a Part 9.10 object; or
(ii) determining whether the community safety supervision order has been, or is being, complied with; and
(c) the general use to be made of any evidence or information obtained by access to data held in the computer.
68 Section 49A (at the end of the heading)
Add "or Part 9.10 warrants".
69 Subsection 49A(1)
After "Part 5.3 warrant", insert "or a Part 9.10 warrant".
70 After paragraph 49A(2)(c)
Insert:
(ca) section 46B;
71 Subsection 49A(4)
After "Part 5.3 supervisory order", insert ", or a community safety supervision order,".
72 Subsections 50A(2) to (5)
After "Part 5.3 information" (wherever occurring), insert "or Part 9.10 information".
73 Subsection 50A(6)
Insert:
Part 9.10 information means information that, if made public, could reasonably be expected to enable a reasonable person to conclude that:
(a) a surveillance device warrant issued in response to an application under subsection 14(3D) or (3E) authorising:
(i) the use of a surveillance device on particular premises; or
(ii) the use of a surveillance device in or on a particular object or class of object; or
(iii) the use of a surveillance device in respect of the conversations, activities or location of a particular person;
is likely to be, or is not likely to be, in force; or
(b) a computer access warrant issued in response to an application under subsection 27A(5B) or (6A) authorising:
(i) access to data held in a particular computer; or
(ii) access to data held in a computer on particular premises; or
(iii) access to data held in a computer associated with, used by or likely to be used by, a particular person;
is likely to be, or is not likely to be, in force.
74 Paragraph 52(1)(j)
After "(1A)", insert "or 46B(1) or (2)".
75 Subparagraph 53(2)(c)(iiic)
After "Part 5.3 supervisory order", insert ", or a community safety supervision order,".
76 Subsection 55(2A)
After "Part 5.3 warrants", insert "or Part 9.10 warrants".
77 Subsection 61(4) (at the end of the heading)
Add " or Part 9.10 information ".
78 At the end of subsection 61(4)
Add "or Part 9.10 information".
79 Paragraphs 61(6)(c) and (d)
After "Part 5.3 information", insert "or Part 9.10 information".
80 Section 61A (at the end of the heading)
Add "or Part 9.10 warrants".
81 Subsection 61A(1)
After "Part 5.3 warrants", insert "or Part 9.10 warrants".
82 After subsection 64A(6)
Insert:
Part 9.10 warrants
(6AA) In the case of a computer that is subject to a Part 9.10 warrant that is a computer access warrant, the eligible Judge or nominated AAT member may grant the assistance order if the eligible Judge or nominated AAT member is satisfied that:
(a) there are reasonable grounds for suspecting that access to the data held in the computer would be likely to substantially assist in:
(i) if the computer access warrant was issued to determine whether to apply for a Part 9.10 order—determining whether to apply for the Part 9.10 order; or
(ii) if the computer access warrant was issued on the basis of a community safety supervision order that is in force—achieving a Part 9.10 object, or determining whether the community safety supervision order, or any succeeding community safety supervision order, has been, or is being, complied with; and
(b) the specified person is:
(i) if the warrant was issued to determine whether to apply for a Part 9.10 order—the person to whom the application relates; or
(ii) if the warrant was issued in relation to a community safety supervision order that is in force—the subject of the community safety supervision order; or
(iii) the owner or lessee of the computer; or
(iv) an employee of the owner or lessee of the computer; or
(v) a person engaged under a contract for services by the owner or lessee of the computer; or
(vi) a person who uses or has used the computer; or
(vii) a person who is or was a system administrator for the system including the computer; and
(c) the specified person has relevant knowledge of:
(i) the computer or a computer network of which the computer forms or formed a part; or
(ii) measures applied to protect data held in the computer.
Telecommunications (Interception and Access) Act 1979
83 Subsection 5(1)
Insert:
community safety detention order has the same meaning as in Division 395 of theCriminal Code .
community safety supervision order has the same meaning as in Division 395 of theCriminal Code .
Immigration Minister means the Minister administering theMigration Act 1958 .
Part 9.10 object means the protection of the community from serious harm by addressing the unacceptable risk of a serious offender committing serious violent or sexual offences.
Part 9.10 order means a community safety detention order or a community safety supervision order.
Part 9.10 warrant means a warrant issued:
(a) under subsection 46(9) or (12) or 46A(2E) or (2G); or
(b) under section 48 in the circumstances mentioned in subsection 46(9) or (12).
Part 9.10 warrant agency means:
(a) a Commonwealth agency; or
(b) an eligible authority of a State that a declaration in force under section 34 authorises to apply for Part 9.10 warrants.
84 Subsection 5(1) (at the end of paragraph (b) of the definition of permitted purpose )
Add:
(x) 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 395 of the Criminal Code (community safety orders); or
(xi) the making of a decision whether to apply for a Part 9.10 order, or for a variation or review of a Part 9.10 order, under Division 395 of the Criminal Code in relation to a person; or
85 Subsection 5(1)
Insert:
serious offender has the same meaning as in Division 395 of theCriminal Code .
serious violent or sexual offence has the same meaning as in Division 395 of theCriminal Code .
succeeding community safety supervision order has the meaning given by section 6UB.
86 After paragraph 5B(1)(bb)
Insert:
(bba) a proceeding under, or a proceeding relating to a matter arising under, Division 395 of the Criminal Code (community safety orders); or
87 Paragraph 6H(a)
Omit "or 46(7)(c) to (h)", substitute "46(7)(c) to (h), 46(9)(c), (d) and (e), or 46(12)(c) to (g)".
88 Paragraph 6H(b)
Omit "or 46A(2C)(c) to (h)", substitute ", 46A(2C)(c) to (h), 46A(2E)(c), (d) and (e), or 46A(2G)(a) to (g)".
89 After section 6U
Insert:
6UA When a community safety supervision order is taken to be in force
For the purposes of this Act, a community safety supervision order is taken to be in force in relation to a person if the order has been made but the period specified in the order under paragraph 395.13(5)(d) of the Criminal Code has not yet begun.
6UB Succeeding community safety supervision orders
(1) If a community safety supervision order is made in relation to a person, any later community safety supervision order in relation to the person is a succeeding community safety supervision order in relation to an earlier community safety supervision order.
(2) If 2 or more successive community safety supervision orders are made in relation to the same person, each later community safety supervision order is a succeeding community safety supervision order in relation to each earlier community safety supervision order.
90 Subsection 7(9) (at the end of the note)
Add:
; or (c) purposes relating to a community safety supervision order or an application for a Part 9.10 order.
91 Section 34 (note)
After "Part 5.3 warrants", insert "or Part 9.10 warrants".
92 Section 34 (note)
Omit "section 38A", substitute "sections 38A and 38B".
93 At the end of Division 2 of Part 2-5
Add:
38B Agencies authorised to apply for Part 9.10 warrants
(1) This section applies to a declaration made under section 34 in relation to an eligible authority of a State.
Authorisation
(2) When the Minister makes the declaration, the Minister must, in the declaration, authorise the eligible authority to apply for Part 9.10 warrants if:
(a) the Premier of the State requests that the eligible authority be so authorised; and
(b) the Minister is satisfied as mentioned in subsection (4) of this section.
(3) The Minister must amend the declaration to authorise the eligible authority to apply for Part 9.10 warrants if:
(a) the declaration does not already so authorise the eligible authority; and
(b) the Premier of the State requests that the eligible authority be so authorised; and
(c) the Minister is satisfied as mentioned in subsection (4).
Criteria to be authorised to apply for a Part 9.10 warrant
(4) For the purposes of paragraph (2)(b) or (3)(c), the Minister must be satisfied that the law of the State makes satisfactory provision:
(a) imposing on the chief officer of the eligible authority requirements corresponding to the requirements that paragraphs 80(f) and (g) and 81(1)(h) and subsection 81(2), so far as that subsection relates to paragraph 81(1)(h), impose on the chief officer of a Commonwealth agency; and
(b) imposing on the chief officer of the eligible authority requirements corresponding to the requirements that section 59C imposes on the chief officer of a Commonwealth agency; and
(c) giving an authority of the State powers corresponding to those that subsections 83(3) and 84(2) and sections 85 and 85B give to the Ombudsman, if the authority of the State receives a notice from the eligible authority because of the requirements mentioned in paragraph (b) of this subsection; and
(d) requiring an authority of the State that has made an inspection of the eligible authority's records under the powers mentioned in paragraph (c) to report in writing to the responsible Minister about the results of the inspection; and
(e) requiring the responsible Minister to give to the Minister, as soon as practicable, a copy of a report that an authority of the State gives to the responsible Minister under a power or requirement mentioned in paragraph (c) or (d).
Removal of authorisation
(5) The Minister must amend the declaration to remove the authorisation of the eligible authority to apply for Part 9.10 warrants if the Premier of the State requests the Minister to remove the authorisation.
(6) The Minister may amend the declaration to remove the authorisation of the eligible authority to apply for Part 9.10 warrants if the Minister is satisfied that:
(a) the law of the State no longer makes satisfactory provision in relation to the eligible authority as mentioned in subsection (4); or
(b) the extent of compliance with a requirement of a law of that State, being a requirement of a kind mentioned in subsection (4), has been unsatisfactory in so far as the requirement relates to the eligible authority; or
(c) the extent of compliance by the chief officer of the eligible authority, or by officers of the eligible authority, with this Act has been unsatisfactory, so far as this Act relates to Part 9.10 warrants.
(7) If the Minister amends the declaration under subsection (5) or (6), the amendment does not affect the validity of a Part 9.10 warrant issued before the amendment in response to an application by the eligible authority.
94 Paragraph 44A(2)(a)
Omit "or 46(8)(a) to (e)", substitute ", 46(8)(a) to (e), 46(10)(a) to (h) or 46(13)(a) to (e)".
95 Paragraph 44A(2)(b)
Omit "or 46A(2D)(a) to (e)", substitute ", 46A(2D)(a) to (e), 46A(2F)(a) to (h) or 46A(2H)(a) to (e)".
96 Paragraph 45(2)(a)
Omit "or 46(8)(a) to (e)", substitute ", 46(8)(a) to (e), 46(10)(a) to (h) or 46(13)(a) to (e)".
97 Paragraph 45(2)(b)
Omit "or 46A(2D)(a) to (e)", substitute ", 46A(2D)(a) to (e), 46A(2F)(a) to (h) or 46A(2H)(a) to (e)".
98 At the end of section 46
Add:
Warrant sought for community safety supervision order
(9) If a Part 9.10 warrant agency applies to an eligible Judge or nominated AAT member for a warrant in respect of a telecommunications service and the Judge or nominated AAT member is satisfied, on the basis of the information given to the Judge or nominated AAT member under this Part in connection with the application, that:
(a) Division 3 has been complied with in relation to the application; and
(b) in the case of a telephone application—because of urgent circumstances, it was necessary to make the application by telephone; and
(c) there are reasonable grounds for suspecting that a particular person is using, or is likely to use, the service; and
(d) either:
(i) a community safety supervision order is in force in relation to the particular person; or
(ii) a community safety supervision order is in force in relation to another person, and the particular person is likely to communicate with the other person using the service; and
(e) information that would be likely to be obtained by intercepting under a warrant communications made to or from the service would be likely to substantially assist in connection with:
(i) achieving a Part 9.10 object; or
(ii) determining whether the community safety supervision order, or any succeeding community safety supervision order, has been, or is being, complied with; and
(f) having regard to the matters referred to in subsection (10), and to no other matters, the Judge or nominated AAT member should issue a warrant authorising such communications to be intercepted;
the Judge or nominated AAT member may, in the Judge or member's discretion, issue such a warrant.
Note 1: Subsection (11) restricts the issuing of warrants if subparagraph (d)(ii) applies.
Note 2: For community safety supervision orders that have been made but not come into force, see section 6UA.
(10) For the purposes of subsection (9), the matters to which the Judge or nominated AAT member must have regard are:
(a) how much the privacy of any person or persons would be likely to be interfered with by intercepting under a warrant communications made to or from the service referred to in subsection (9); and
(b) how much the information referred to in paragraph (9)(e) would be likely to assist in connection with:
(i) achieving a Part 9.10 object; or
(ii) determining whether the community safety supervision order, or any succeeding community safety supervision order, has been, or is being, complied with; and
(c) to what extent methods for:
(i) achieving a Part 9.10 object; or
(ii) determining whether the community safety supervision order, or any succeeding community safety supervision order, has been, or is being, complied with;
that do not involve so intercepting communications have been used by, or are available to, the agency; and
(d) how much the use of such methods would be likely to assist in connection with:
(i) achieving a Part 9.10 object; or
(ii) determining whether the community safety supervision order, or any succeeding community safety supervision order, has been, or is being, complied with; and
(e) how much the use of such methods would be likely to prejudice:
(i) achieving a Part 9.10 object; or
(ii) determining whether the community safety supervision order, or any succeeding community safety supervision order, has been, or is being, complied with;
whether because of delay or for any other reason; and
(f) whether intercepting under a warrant communications made to or from the service referred to in subsection (9) would be the method that is likely to have the least interference with any person's privacy; and
(g) the possibility that the person in relation to whom the order is in force has committed, is committing, or will commit a serious violent or sexual offence; and
(h) the possibility that the person in relation to whom the order is in force:
(i) has contravened, is contravening or will contravene the community safety supervision order; or
(ii) will contravene a succeeding community safety supervision order; and
(i) in relation to an application by an interception agency of Victoria—any submissions made by the Victorian PIM under section 44A to the Judge or nominated AAT member; and
(j) in relation to an application by an interception agency of Queensland—any submissions made by the Queensland PIM under section 45 to the Judge or nominated AAT member.
(11) The Judge or nominated AAT member must not issue a warrant in a case in which subparagraph (9)(d)(ii) applies unless the Judge or nominated AAT member is satisfied that:
(a) the agency has exhausted all other practicable methods of identifying the telecommunications services used, or likely to be used, by the person to whom the community safety supervision order referred to in subparagraph (9)(d)(ii) relates; or
(b) interception of communications made to or from a telecommunications service used or likely to be used by that person would not otherwise be possible.
Warrant sought for Part 9.10 order application
(12) If a Part 9.10 warrant agency applies to an eligible Judge or nominated AAT member for a warrant in respect of a telecommunications service and the Judge or nominated AAT member is satisfied, on the basis of the information given to the Judge or nominated AAT member under this Part in connection with the application, that:
(a) Division 3 has been complied with in relation to the application; and
(b) in the case of a telephone application—because of urgent circumstances, it was necessary to make the application by telephone; and
(c) there are reasonable grounds for suspecting that a particular person is using, or is likely to use, the service; and
(d) the person is a serious offender in relation to whom an application for a Part 9.10 order could be made; and
(e) there are reasonable grounds to suspect that there is an appreciable risk of the person committing a serious violent or sexual offence; and
(f) consideration is being given, will be given, or is likely to be given, by the Immigration Minister (or a person on behalf of the Immigration Minister), as to whether to apply for a Part 9.10 order in relation to the person; and
(g) information that would be likely to be obtained by intercepting under a warrant communications made to or from the service would be likely to assist in determining whether to apply for the Part 9.10 order; and
(h) having regard to the matters referred to in subsection (13), and to no other matters, the Judge or nominated AAT member should issue a warrant authorising such communications to be intercepted;
the Judge or nominated AAT member may, in the Judge's or member's discretion, issue such a warrant.
(13) For the purposes of subsection (12), the matters to which the Judge or nominated AAT member must have regard are:
(a) how much the privacy of any person or persons would be likely to be interfered with by intercepting under a warrant communications made to or from the service referred to in subsection (12); and
(b) how much the information referred to in paragraph (12)(g) would be likely to assist in determining whether to apply for the Part 9.10 order; and
(c) to what extent methods of determining whether to apply for the Part 9.10 order that do not involve so intercepting communications have been used by, or are available to, the Immigration Minister (or a legal representative of the Immigration Minister); and
(d) how much the use of such methods would be likely to assist in determining whether to apply for the Part 9.10 order; and
(e) how much the use of such methods would be likely to prejudice determining whether to apply for the Part 9.10 order, whether because of delay or for any other reason; and
(f) in relation to an application by an interception agency of Victoria—any submissions made by the Victorian PIM under section 44A to the Judge or nominated AAT member; and
(g) in relation to an application by an interception agency of Queensland—any submissions made by the Queensland PIM under section 45 to the Judge or nominated AAT member.
99 After subsection 46A(2D)
Insert:
Warrant for community safety supervision order
(2E) If a Part 9.10 warrant agency applies to an eligible Judge or nominated AAT member for a warrant in respect of a person and the Judge or nominated AAT member is satisfied, on the basis of the information given to the Judge or nominated AAT member under this Part in connection with the application, that:
(a) Division 3 has been complied with in relation to the application; and
(b) in the case of a telephone application—because of urgent circumstances, it was necessary to make the application by telephone; and
(c) there are reasonable grounds for suspecting that a particular person is using, or is likely to use, more than one telecommunications service; and
(d) a community safety supervision order is in force in relation to the person; and
(e) information that would be likely to be obtained by intercepting under a warrant:
(i) communications made to or from any telecommunications service that the person is using, or is likely to use; or
(ii) communications made by means of a particular telecommunications device or particular telecommunications devices that the person is using, or is likely to use;
would be likely to substantially assist in connection with:
(iii) achieving a Part 9.10 object; or
(iv) determining whether the community safety supervision order, or any succeeding community safety supervision order, has been, or is being, complied with; and
(f) having regard to the matters referred to in subsection (2F), and to no other matters, the Judge or nominated AAT member should issue a warrant authorising such communications to be intercepted;
the Judge or nominated AAT member may, in the Judge or member's discretion, issue such a warrant.
Note 1: Subsection (3) restricts the issuing of a warrant authorising interception of communications made by means of a telecommunications device or telecommunications devices identified in the warrant.
Note 2: For community safety supervision orders that have been made but not come into force, see section 6UA.
(2F) For the purposes of subsection (2E), the matters to which the Judge or nominated AAT member must have regard are:
(a) how much the privacy of any person or persons would be likely to be interfered with by intercepting under a warrant:
(i) communications made to or from any telecommunications service used, or likely to be used, by the person in respect of whom the warrant is sought; or
(ii) communications made by means of a particular telecommunications device or particular telecommunications devices used, or likely to be used, by the person in respect of whom the warrant is sought;
as the case requires; and
(b) how much the information referred to in paragraph (2E)(e) would be likely to assist in connection with:
(i) achieving a Part 9.10 object; or
(ii) determining whether the community safety supervision order, or any succeeding community safety supervision order, has been, or is being, complied with; and
(c) to what extent methods (including the use of a warrant issued under section 46) for:
(i) achieving a Part 9.10 object; or
(ii) determining whether the community safety supervision order, or any succeeding community safety supervision order, has been, or is being, complied with;
that do not involve the use of a warrant issued under this section in relation to the person have been used by, or are available to, the agency; and
(d) how much the use of such methods would be likely to assist in connection with:
(i) achieving a Part 9.10 object; or
(ii) determining whether the community safety supervision order, or any succeeding community safety supervision order, has been, or is being, complied with; and
(e) how much the use of such methods would be likely to prejudice:
(i) achieving a Part 9.10 object; or
(ii) determining whether the community safety supervision order, or any succeeding community safety supervision order, has been, or is being, complied with;
whether because of delay or for any other reason; and
(f) whether intercepting under a warrant communications referred to in paragraph (a) of this subsection would be the method that is likely to have the least interference with any person's privacy; and
(g) the possibility that the person in relation to whom the order is in force has committed, is committing, or will commit a serious violent or sexual offence; and
(h) the possibility that the person in relation to whom the order is in force:
(i) has contravened, is contravening, or will contravene, the community safety supervision order; or
(ii) will contravene a succeeding community safety supervision order; and
(i) in relation to an application by an interception agency of Victoria—any submissions made by the Victorian PIM under section 44A to the Judge or nominated AAT member; and
(j) in relation to an application by an interception agency of Queensland—any submissions made by the Queensland PIM under section 45 to the Judge or nominated AAT member.
Warrant sought for Part 9.10 order application
(2G) If a Part 9.10 warrant agency applies to an eligible Judge or nominated AAT member for a warrant in respect of a person and the Judge or nominated AAT member is satisfied, on the basis of the information given to the Judge or nominated AAT member under this Part in connection with the application, that:
(a) Division 3 has been complied with in relation to the application; and
(b) in the case of a telephone application—because of urgent circumstances, it was necessary to make the application by telephone; and
(c) there are reasonable grounds for suspecting that a particular person is using, or is likely to use, more than one telecommunications service; and
(d) the person is a serious offender in relation to whom an application for a Part 9.10 order could be made; and
(e) there are reasonable grounds to suspect that there is an appreciable risk of the person committing a serious violent or sexual offence; and
(f) consideration is being given, will be given, or is likely to be given, by the Immigration Minister (or a person on behalf of the Immigration Minister), as to whether to apply for a Part 9.10 order in relation to the person; and
(g) information that would be likely to be obtained by intercepting under a warrant:
(i) communications made to or from any telecommunications service that the person is using, or is likely to use; or
(ii) communications made by means of a particular telecommunications device or particular telecommunications devices that the person is using, or is likely to use;
would be likely to assist in determining whether to apply for the Part 9.10 order; and
(h) having regard to the matters referred to in subsection (2H), and to no other matters, the Judge or nominated AAT member should issue a warrant authorising such communications to be intercepted;
the Judge or nominated AAT member may, in the Judge's or member's discretion, issue such a warrant.
(2H) For the purposes of subsection (2G), the matters to which the Judge or nominated AAT member must have regard are:
(a) how much the privacy of any person or persons would be likely to be interfered with by intercepting under a warrant:
(i) communications made to or from any telecommunications service used, or likely to be used, by the person in respect of whom the warrant is sought; or
(ii) communications made by means of a particular telecommunications device or particular telecommunications devices used, or likely to be used, by the person in respect of whom the warrant is sought; and
(b) how much the information referred to in paragraph (2G)(g) would be likely to assist in connection with determining whether to apply for the Part 9.10 order; and
(c) to what extent methods (including the use of a warrant issued under section 46) for determining whether to apply for a Part 9.10 order that do not involve so intercepting communications have been used by, or are available to, the Immigration Minister (or a legal representative of the Immigration Minister); and
(d) how much the use of such methods would be likely to assist in determining whether to apply for the Part 9.10 order; and
(e) how much the use of such methods would be likely to prejudice determining whether to apply for the Part 9.10 order, whether because of delay or for any other reasons; and
(f) in relation to an application by an interception agency of Victoria—any submissions made by the Victorian PIM under section 44A to the Judge or nominated AAT member; and
(g) in relation to an application by an interception agency of Queensland—any submissions made by the Queensland PIM under section 45 to the Judge or nominated AAT member.
100 Subsection 48(1) (note)
Omit "Note", substitute "Note 1".
101 At the end of subsection 48(1)
Add:
Note 2: Only a Part 9.10 warrant agency may apply for a warrant under section 46 in the circumstances mentioned in subsection 46(9) or (12).
102 Subparagraph 48(3)(d)(ii)
After "subsection 46(4)", insert "or (9)".
103 Paragraph 49(3)(a)
Omit "or 46(4)(d)(ii)", substitute ", 46(4)(d)(ii) or 46(9)(d)(ii)".
104 After subsection 49(6A)
Insert:
(6B) To avoid doubt, a warrant issued on the basis that a community safety supervision order is in force remains in force for the period mentioned in subsection (3) even if the order ceases to be in force, provided that the order is replaced by a succeeding community safety supervision order.
Note: If there is no succeeding community safety supervision order, the warrant must be revoked (see section 57).
105 At the end of section 49
Add:
Content of warrants issued for community safety supervision orders
(10) A warrant issued for a community safety supervision order that is in force must:
(a) state that the warrant is issued on the basis of a community safety supervision order made in relation to a person; and
(b) specify the name of the person; and
(c) specify the date the community safety supervision order was made.
Warrants issued for Part 9.10 order applications
(11) A warrant issued to determine whether to make an application for a Part 9.10 order in relation to a person must:
(a) state that the warrant is issued on that basis; and
(b) specify the name of the person.
106 At the end of section 57
Add:
(7) For the purposes of the application of subsection (1) to a community safety supervision order warrant issued on the ground that a community safety supervision order was in force, that ground is taken to have ceased to exist if, and only if, neither that community safety supervision order, nor any succeeding community safety supervision order, is in force.
107 After section 59B
Insert:
59C Notification to Ombudsman by Commonwealth agencies in relation to Part 9.10 warrants
(1) Within 6 months after a Part 9.10 warrant is issued in response to an application by a Commonwealth agency, the chief officer of the agency must:
(a) notify the Ombudsman that the warrant has been issued; and
(b) give to the Ombudsman a copy of the warrant.
(2) As soon as practicable after an officer of a Commonwealth agency contravenes any of the following conditions, restrictions or provisions, the chief officer of the agency must notify the Ombudsman of the contravention:
(a) a condition or restriction specified in the warrant under subsection 49(2);
(b) the following provisions, to the extent that they apply to the warrant:
(i) paragraph 57(1)(b);
(ii) subsection 63(1);
(iii) subsection 63(2);
(iv) section 79;
(c) section 79AB;
(d) subsection 103B(4).
(3) A failure to comply with subsection (1) or (2) does not affect the validity of the warrant.
108 At the end of subsection 65A(2)
Add:
; or (c) any of the following:
(i) achieving a Part 9.10 object;
(ii) determining whether a community safety supervision order has been, or is being, complied with;
(iii) 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 395 of the Criminal Code (community safety orders).
109 At the end of subsection 67(1C)
Add:
; or (d) if the information was obtained under a Part 9.10 warrant issued on the basis that a community safety supervision order was in force in relation to a person—any of the following:
(i) achieving a Part 9.10 object;
(ii) determining whether the community safety supervision order has been, or is being, complied with; or
(e) if the information was obtained under any Part 9.10 warrant—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:
(i) Division 395 of the Criminal Code (community safety orders); or
(ii) a Part 9.10 order.
110 After section 79AA
Insert:
79AB Destruction of restricted records — information obtained before a community safety supervision order came into force
(1) If:
(a) a restricted record is in the possession of an agency; and
(b) the restricted record relates to an interception authorised by a community safety supervision order warrant; and
(c) the warrant was issued for the purpose, or for purposes that include the purpose, of obtaining information that would be likely to assist in connection with determining whether the relevant community safety supervision order, or any succeeding community safety supervision order, has been, or is being, complied with; and
(d) the interception occurred when the community safety supervision order had been made but had not come into force; and
(e) the chief officer of the agency is satisfied that none of the information obtained by the interception is likely to assist in connection with achieving a Part 9.10 object;
the chief officer of the agency must cause the restricted record to be destroyed as soon as practicable.
(2) Section 6UA does not apply to subsection (1) of this section.
111 At the end of subsection 81A(2)
Add:
; and (i) in the case of a Part 9.10 warrant—the name of the person to whom the relevant community safety supervision order or application relates.
112 After paragraph 81C(2)(h)
Insert:
; (i) in the case of a Part 9.10 warrant—the name of the person to whom the relevant community safety supervision order or application relates.
113 Subsections 83(1) and (2)
After "79AA,", insert "79AB,".
114 Subsection 83(3)
After "(about Part 5.3 warrants)", insert "or subsection 59C(2) (about Part 9.10 warrants)".
115 Subsection 85(3)
After "79AA,", insert "79AB,".
116 After section 85A
Insert:
85B Annual report may cover notified breaches in relation to Part 9.10 warrants
(1) In a report under subsection 84(1) in relation to a financial year, the Ombudsman may include a report on a contravention of which the Ombudsman is notified under subsection 59C(2) (about Part 9.10 warrants), if the Ombudsman does not conduct an inspection under subsection 83(3) in relation to a period during which the contravention occurred.
Note: If the Ombudsman conducts an inspection under subsection 83(3), the relevant report under subsection 84(1):
(a) must include the matters mentioned in subsection 84(1A) in relation to the inspection; and
(b) may include other information about contraventions of this Act (see section 85).
(2) For the purposes of subsection (1), it does not matter whether the Ombudsman is notified under subsection 59C(2) before, during or after the financial year to which the report relates.
(3) Subsection (1) does not limit what the Ombudsman may include in a report under section 84 or 85.
117 Subsection 103B(2)
After "Part 5.3 information", insert "or Part 9.10 information".
118 Subsection 103B(3)
After "Part 5.3 information", insert "or Part 9.10 information (as the case may be)".
119 Paragraphs 103B(4)(a) and (b)
After "Part 5.3 information", insert "or Part 9.10 information (as the case may be)".
120 Subsection 103B(5)
After "Part 5.3 information", insert "or Part 9.10 information (as the case may be)".
121 Subsection 103B(6)
Insert:
Part 9.10 information means information that, if made public, could reasonably be expected to enable a reasonable person to conclude that:
(a) a Part 9.10 warrant is likely to be, or is not likely to be, in force in relation to a telecommunications service used, or likely to be used, by a particular person; or
(b) a Part 9.10 warrant is likely to be, or is not likely to be, in force in relation to a particular person.
122 At the end of the heading to section 139B
Add "or Part 9.10 orders".
123 At the end of subsection 139B(2)
Add:
; or (c) Division 395 of the Criminal Code (community safety orders).
124 After subparagraph 180D(2)(b)(ia)
Insert:
(ib) for the purposes of Division 395 of the Criminal Code (community safety orders); or
125 After subparagraph 180D(2)(c)(ia)
Insert:
(ib) for the purposes of Division 395 of the Criminal Code (community safety orders); or
126 After subparagraph 181B(3)(b)(iia)
Insert:
(iib) for the purposes of Division 395 of the Criminal Code (community safety orders); or
127 After subparagraph 181B(6)(b)(iaa)
Insert:
(iab) for the purposes of Division 395 of the Criminal Code (community safety orders); or
128 After subparagraph 182(2)(a)(iiia)
Insert:
(iiib) for the purposes of Division 395 of the Criminal Code (community safety orders); or
129 After subparagraph 182(3)(a)(iia)
Insert:
(iib) for the purposes of Division 395 of the Criminal Code (community safety orders); or
130 After subparagraph 182B(b)(iva)
Insert:
(ivb) for the purposes of Division 395 of the Criminal Code (community safety orders); or
Part 2 — Application provisions
131 Application provisions — Division 395 and related amendments
(1) Division 395 of the Criminal Code , as inserted by this Schedule, applies in relation to a conviction for a serious violent or sexual offence, or a serious foreign violent or sexual offence, that occurs before, on or after the commencement of this item.
(2) The Surveillance Devices Act 2004 and theTelecommunications (Interception and Access) Act 1979 , as amended by this Schedule, apply in relation to a serious offender, whether the conviction concerned occurs before, on or after the commencement of this item.
132 Application provision — declarations
Subsections 38B(3), (5) and (6) of the Telecommunications (Interception and Access) Act 1979 , as inserted by this Schedule, apply in relation to a declaration that is in force on or after the commencement of this item, whether the declaration was made before, on or after that commencement.
133 Application provision — information and documents
The amendments of the Telecommunications (Interception and Access) Act 1979 made by this Schedule apply in relation to:
(a) the making of a record of, the disclosure of or the use of information on or after the commencement of this item; and
(b) the disclosure or use of a document on or after the commencement of this item;
whether the information or document was obtained before, on or after that commencement.
(a) applications for each kind of community safety order made during the year;
(b) each kind of community safety order made during the year;
(c) applications for review of each kind of community safety order made by serious offenders during the year;
(d) applications for review of each kind of community safety order made by the Immigration Minister, or a legal representative of the Immigration Minister, during the year;
(e) each kind of community safety order affirmed during the year;
(f) each kind of community safety order varied during the year;
(g) community safety orders revoked (including by operation of this Act) during the year.
serious violent or sexual offence means an offence against a law of the Commonwealth, a State or a Territory where:
(a) it is an offence punishable by imprisonment for life or for a period, or maximum period, of at least 7 years; and
(b) the particular conduct constituting the offence involved, involves or would involve—
(i) loss of a person's life or serious risk of loss of a person's life; or
(ii) serious personal injury or serious risk of serious personal injury; or
(iii) sexual assault; or
(iv) sexual assault involving a person under 16; or
(v) … child abuse material—
On 8 November 2023, the High Court answered questions of law reserved for its consideration in a special case to the effect that ss 189(1) and 196(1) of the Migration Act 1958 … on their proper construction, authorised the plaintiff's detention as at 30 May 2023 and 8 November 2023, but the sections are beyond the legislative power of the Commonwealth Parliament insofar as they applied to the plaintiff as at those dates.
The Court held that ss 189(1) and 196(1), as applied to the plaintiff, contravened Ch III of the Constitution because the plaintiff's detention was not reasonably capable of being seen as necessary for a legitimate and non-punitive purpose in circumstances where there was no real prospect of the removal of the plaintiff from Australia becoming practicable in the reasonably foreseeable future.
… these laws have made us a coarser and harsher society. I doubt that anyone knows whether they have made us safer.
The Government is committed to protecting the safety of the community and acting in accordance with the law.
Our response to the High Court's decision in—
has at all times been guided by these fundamental principles.
The High Court determines the meaning of the Australian Constitution—not politicians.
The High Court has held that, if a non-citizen has been refused permission to remain in Australia, and there is no real prospect of removing them from Australia in the reasonably foreseeable future, the non-citizen cannot lawfully be held in immigration detention …
In NZYQ, the High Court made a decision that did not only apply to the plaintiff in that matter. Rather, the Court set a new limit on the Parliament's power to make laws requiring or authorising the detention of any non-citizen who is relevantly in the same position as the plaintiff …
As a result of the High Court's decision, the continued detention of any NZYQ-affected person would be unlawful.
The Department of Home Affairs undertakes expert assessment of whether a person is an "NZYQ-affected person". If and when it is clear that a person in immigration detention is an NZYQ-affected person, the Department must immediately take steps to secure the person's release from detention. There is no legal basis on which the Government can delay releasing the person until, for example, a court orders the person's release.
Moreover, whether a person is required to be released turns solely on whether they fall within the limit identified by the High Court's order in NZYQ—and not, for example, on their personal circumstances including any criminal history they may have.
It is a fundamental principle of our system of law that the government cannot deprive a person of their liberty without positive authority conferred by law. Following the High Court's decision in NZYQ, there is no power to detain the affected non-citizens under the Migration Act. There is no power for a minister to direct an officer to detain the affected non-citizens.
For these reasons, any delay in releasing an NZYQ-affected person could expose the Commonwealth and individual officers to liability for (among other things) false imprisonment. Any officer who continues to detain a person who they know is an NZYQ-affected person may also be acting in breach of the APS Code of Conduct and be liable to disciplinary action as a result.
Detainees at immigration detention centres on Australian shores have successfully escaped more than 80 times since July 2013, government figures reveal.
… the total number of detainees who escaped detention during the period would be higher because some reported incidents have involved more than one person.
The committee divided. [18:24]
(The Chair—Senator McLachlan)
SHEET 2262 REVISED
(1) Clause 3, page 2 (after line 11), at the end of the clause, add:
Note: The provisions of the Migration Regulations 1994 amended or inserted by this Act, and any other provisions of those regulations, may be amended or repealed by regulations made under theMigration Act 1958 (see subsection 13(5) of theLegislation Act 2003 ).
(2) Schedule 1, page 8 (after line 21), at the end of the Schedule, add:
8A Sunset of amendments
The amendments of the Migration Act 1958 made by:
(a) this Schedule, other than the amendments of the Migration Act 1958 made by this Schedule to insert section 76AA; and
(b) Schedule 1 to the Migration Amendment (Bridging Visa Conditions) Act 2023 ;
cease to be in force at the start of the day after the end of the period of 6 months beginning on the day this Act receives the Royal Assent.
(3) Schedule 1, page 8 (after line 21), at the end of the Bill, add:
Schedule 1A — Sunset of amendments
Part 1 — Amendment of the Migration Regulations 1994
Migration Regulations 1994
1 At the end of Part 126 of Schedule 13
Add:
12602 Sunset of amendments
The amendments of these Regulations made by Part 1 of Schedule 2 to the Migration Amendment (Bridging Visa Conditions) Act 2023 cease to be in force at the start of the day after the end of the period of 6 months beginning on the day theMigration Amendment (Bridging Visa Conditions and Other Measures) Act 2023 receives the Royal Assent.
Part 2 — Other provisions
2 Affirmative resolution
(1) This item applies to regulations made under the Migration Act 1958 that:
(a) are made on or after the commencement of this Schedule; and
(b) have the effect of amending or repealing, or otherwise altering the effect or operation of, the amendments of the Migration Regulations 1994 made by this Schedule.
(2) The regulations do not come into effect until they have been approved by a resolution of each House of the Parliament.
_____
SHEET 2263 REVISED
(1) Clause 3, page 2 (after line 11), at the end of the clause, add:
Note: The provisions of the Migration Regulations 1994 amended or inserted by this Act, and any other provisions of those regulations, may be amended or repealed by regulations made under theMigration Act 1958 (see subsection 13(5) of theLegislation Act 2003 ).
(2) Schedule 1, page 8 (after line 21), at the end of the Schedule, add:
8A Sunset of amendments
The amendments of the Migration Act 1958 made by:
(a) this Schedule, other than the amendments of the Migration Act 1958 made by this Schedule to insert section 76AA; and
(b) Schedule 1 to the Migration Amendment (Bridging Visa Conditions) Act 2023 ;
cease to be in force at the start of the day after the end of the period of 12 months beginning on the day this Act receives the Royal Assent.
(3) Schedule 1, page 8 (after line 21), at the end of the bill, add:
Schedule 1A — Sunset of amendments
Part 1 — Amendment of the Migration Regulations 1994
Migration Regulations 1994
1 At the end of Part 126 of Schedule 13
Add:
12602 Sunset of amendments
The amendments of these Regulations made by Part 1 of Schedule 2 to the Migration Amendment (Bridging Visa Conditions) Act 2023 cease to be in force at the start of the day after the end of the period of 12 months beginning on the day theMigration Amendment (Bridging Visa Conditions and Other Measures) Act 2023 receives the Royal Assent.
Part 2 — Other provisions
2 Affirmative resolution
(1) This item applies to regulations made under the Migration Act 1958 that:
(a) are made on or after the commencement of this Schedule; and
(b) have the effect of amending or repealing, or otherwise altering the effect or operation of, the amendments of the Migration Regulations 1994 made by this Schedule.
(2) The regulations do not come into effect until they have been approved by a resolution of each House of the Parliament.
_____
SHEET 2321
(1) Clause 3, page 2 (after line 11), at the end of the clause, add:
Note: The provisions of the Migration Regulations 1994 amended or inserted by this Act, and any other provisions of those regulations, may be amended or repealed by regulations made under theMigration Act 1958 (see subsection 13(5) of theLegislation Act 2003 ).
(2) Schedule 1, page 8 (after line 21), at the end of the Schedule, add:
8A Sunset of amendments
The amendments of the Migration Act 1958 made by:
(a) this Schedule; and
(b) Schedule 2; and
(c) Schedule 1 to the Migration Amendment (Bridging Visa Conditions) Act 2023 ;
cease to be in force at the start of the day after the end of the period of 12 months beginning on the day this Act receives the Royal Assent.
(3) Schedule 1, page 8 (after line 21), at the end of the bill, add:
Schedule 1A — Sunset of amendments
Part 1 — Amendment of the Migration Regulations 1994
Migration Regulations 1994
1 At the end of Part 126 of Schedule 13
Add:
12602 Sunset of amendments
The amendments of these Regulations made by Part 1 of Schedule 2 to the Migration Amendment (Bridging Visa Conditions) Act 2023 cease to be in force at the start of the day after the end of the period of 12 months beginning on the day theMigration Amendment (Bridging Visa Conditions and Other Measures) Act 2023 receives the Royal Assent.
Part 2 — Other provisions
2 Affirmative resolution
(1) This item applies to regulations made under the Migration Act 1958 that:
(a) are made on or after the commencement of this Schedule; and
(b) have the effect of amending or repealing, or otherwise altering the effect or operation of, the amendments of the Migration Regulations 1994 made by this Schedule.
(2) The regulations do not come into effect until they have been approved by a resolution of each House of the Parliament.
The committee divided. [18:28]
(The Chair—Senator McLachlan)
(1) Page 2 (after line 11), after clause 3, insert:
4 Review of operation of amendments
(1) The Minister must cause an independent review to be conducted of the operation of the amendments made by:
(a) this Act; and
(b) the Migration Amendment (Bridging Visa Conditions) Act 2023 .
(2) Without limiting the matters that may be considered when conducting the review, the review must:
(a) consider whether the operation of the amendments referred to in subsection (1) is appropriate and effective; and
(b) identify any unintended consequences of the amendments referred to in subsection (1); and
(c) consider the constitutionality of the amendments referred to in subsection (1); and
(d) consider whether any further amendments are necessary to:
(i) improve the operation of the amendments referred to in subsection (1); or
(ii) rectify any unintended consequences identified under paragraph (b).
(3) The persons who conduct the review must give the Minister a written report of the review within 6 months of the commencement of this Act.
(4) The Minister must cause a copy of the report of the review to be tabled in each House of the Parliament within 5 sitting days of that House after the Minister receives the report.
The committee divided. [18:32]
(The Chair—Senator McLachlan)
(1) Schedule 1, item 4, page 7 (after line 28), after section 76F, insert:
76G Statement about grant of visas to certain non-citizens released from immigration detention
Minister must prepare statement
(1) The Minister must prepare a statement about the grant of any of the following visas to a non-citizen:
(a) a Subclass 070 (Bridging (Removal Pending)) visa granted in the circumstances described in paragraphs 76A(1)(b), (c) and (d);
(b) a Subclass 070 (Bridging (Removal Pending)) visa taken to have been granted under paragraph 76A(3)(a);
(c) a visa granted under a provision of the regulations prescribed for the purposes of subsection 76E(4);
(d) if the non-citizen is released from immigration detention because, at the time of the release, there is no real prospect of the removal of the non-citizen from Australia becoming practicable in the reasonably foreseeable future—a visa (other than a visa covered by any of the above paragraphs) granted to the non-citizen at any time after the release.
Information included in the statement
(2) The statement about the grant of a visa to a non-citizen must, subject to subsection (3), include the following:
(a) details of the visa to which the statement relates, including the conditions (if any) imposed on the visa;
(b) details of the non-citizen's immigration history, including details of any visas previously held by the non-citizen;
(c) if the non-citizen is, or has been, of character concern—details of the character concern;
(d) if the non-citizen has been convicted, in Australia, of an offence—details of the offence;
(e) if the non-citizen has been convicted, in a foreign country, of an offence—details of the offence (to the extent that the details are held by the Minister or the Department);
(f) the basis on which there was no real prospect of the removal of the non-citizen from Australia becoming practicable in the reasonably foreseeable future, at the following time:
(i) for a visa covered by paragraph (1)(a) or (c)—at the time non-citizen was granted the visa;
(ii) for a visa covered by paragraph (1)(b)—at the time the non-citizen was granted a visa covered by paragraph (1)(a);
(iii) for a visa covered by paragraph (1)(d)—at the time the non-citizen was most recently released from immigration detention, as described in that paragraph, before the grant of the visa;
(g) details of any attempts to remove or deport the non-citizen from Australia.
(3) The statement about the grant of a visa to a non-citizen must not include:
(a) the non-citizen's name, date of birth or residential address; or
(b) information that would reveal the identity of the non-citizen; or
(c) information the disclosure of which would, or could reasonably be expected to, cause damage to the security, defence or international relations of the Commonwealth.
Preparation and tabling within 7 days
(4) The statement about the grant of a visa to a non-citizen must be prepared within the period (the relevant period ) of 7 days starting:
(a) for a visa granted before this section commences—on the day this section commences; or
(b) otherwise—on the day the visa is granted.
(5) The Minister must, within the relevant period, cause a copy of the statement:
(a) to be tabled in each House of the Parliament; or
(b) if a House of the Parliament is not sitting after the statement is prepared and before the end of relevant period—to be presented or tabled at the earliest opportunity in accordance with the practices of that House.
Natural justice hearing rule
(6) The Minister is not required to observe any requirements of the natural justice hearing rule in exercising a power or performing a function under this section.
(2) Schedule 1, page 8 (after line 21), at the end of the Schedule, add:
8 Application of amendments — section 76G
Section 76G of the Migration Act 1958 , as inserted by this Schedule, applies in relation to the following:
(a) a visa covered by paragraph 76G(1)(a), (b) or (c) granted, or taken to have been granted, to a non-citizen before, on or after the commencement of this item;
(b) a visa covered by paragraph 76G(1)(d) granted to a non-citizen on or after that commencement, whether the non-citizen was released from immigration detention before, on or after that commencement.
The committee divided. [18:39]
(The Chair—Senator McLachlan)
Nature Repair Market Bill 2023
Nature Repair Market (Consequential Amendments) Bill 2023
At the end of the motion, add ", but the Senate notes that to achieve the aims of the bill in enhancing and protecting biodiversity, the Government must:
(a) create an investment strategy for biodiversity conservation programs;
(b) implement the recommendations of the Taskforce on Nature-related Financial Disclosures; and
(c) undertake a review of the governance of the nature repair market and whether responsibility for the market should be transferred to the Environmental Protection Agency once that agency has been established".
That so much of standing orders be suspended as would prevent a minister moving, in committee of the whole, amendments to the bill which amend the Environment Protection and Biodiversity Conservation Act 1999 to expand the circumstances in which certain petroleum mining developments must be assessed and approved by the minister administering that Act.
I'm proposing to release those exposure drafts in the second half of this year so people will be able to comment on the proposed changes that we're making.
The Senate divided. [19:14]
(The President—Senator Lines)
Nature Repair Market Bill 2023
Nature Repair Market (Consequential Amendments) Bill 2023
(1) Clause 2, page 2 (table), omit the table (not including the note), substitute:
(2) Page 8 (after line 22), at the end of the bill, add:
Schedule 2—Protecting water resources from additional kinds of unconventional gas developments
Part 1—Amendments
Environment Protection and Biodiversity Conservation Act 1999
1 Subdivision FB of Division 1 of Part 3 (heading)
Omit "coal seam gas development", substitute "unconventional gas development".
2 Subparagraphs 24D(1)(a)(i), (2)(a)(i) and (3)(a)(i)
Repeal the subparagraphs, substitute:
(i) unconventional gas development; or
3 Subparagraphs 24E(1)(a)(i), (2)(a)(i) and (3)(a)(i)
Repeal the subparagraphs, substitute:
(i) unconventional gas development; or
4 Subsection 130(4A)
Omit "Coal Seam Gas", substitute "Unconventional Gas Development".
5 Section 131AB (heading)
Omit "Coal Seam Gas", substitute "Unconventional Gas Development".
6 Subparagraph 131AB(1)(a)(i)
Repeal the subparagraph, substitute:
(i) unconventional gas development; or
7 Subsection 131AB(2)
Omit "Coal Seam Gas", substitute "Unconventional Gas Development".
8 Paragraph 136(2)(fa)
Omit "Coal Seam Gas", substitute "Unconventional Gas Development".
9 Subparagraph 304(1)(a)(viia)
Omit "coal seam gas development", substitute "unconventional gas development".
10 Paragraph 305(1)(ga)
Omit "coal seam gas development", substitute "unconventional gas development".
11 Subparagraphs 305(1A)(b)(via) and (c)(viia)
Omit "coal seam gas development", substitute "unconventional gas development".
12 Paragraph 305(2)(ea)
Omit "coal seam gas development", substitute "unconventional gas development".
13 Subparagraphs 306(1)(a)(viia) and (b)(viia) and (2)(a)(viia) and (b)(viia)
Omit "coal seam gas development", substitute "unconventional gas development".
14 Division 2B of Part 19 (heading)
Omit "Coal Seam Gas", substitute "Unconventional Gas Development".
15 Subsection 505C(1)
Repeal the subsection, substitute:
(1) The committee established by this section as previously in force is continued in existence with the new name of the Independent Expert Scientific Committee on Unconventional Gas Development and Large Coal Mining Development.
Note: See also section 25B of the Acts Interpretation Act 1901 .
16 Paragraphs 505D(1)(a) and (b)
Omit "coal seam gas developments", substitute "unconventional gas developments".
17 Subparagraphs 505D(1)(c)(i) and (d)(i) and (ii)
Omit "coal seam gas", substitute "unconventional gas".
18 Paragraphs 505D(1)(e), (f) and (g)
Omit "coal seam gas", substitute "unconventional gas".
19 Paragraph 506(d)
Omit "Coal Seam Gas", substitute "Unconventional Gas Development".
20 Section 528 (definition of bioregional assessment )
Omit "coal seam gas development", substitute "unconventional gas development".
21 Section 528 (definition of coal seam gas development )
Repeal the definition.
22 Section 528 (definition of Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development )
Repeal the definition.
23 Section 528
Insert:
Independent Expert Scientific Committee on Unconventional Gas Development and Large Coal Mining Development means the Committee established by section 505C.
unconventional gas development means any activity involving unconventional gas production that has, or is likely to have, a significant impact on water resources (including any impacts of associated salt production and/or salinity):
(a) in its own right; or
(b) when considered with other developments, whether past, present or reasonably foreseeable developments.
unconventional gas production means extraction, recovery, or intentional release, (whether by drilling, hydraulic fracturing or other means) of gas from:
(a) coal seams or beds; or
(b) layers of shale rock; or
(c) tight gas reservoirs; or
(d) any other sources prescribed by the regulations.
Part 2—Application and transitional provisions
24 Definitions
In this Part:
commencement day means the day this Schedule commences.
main Act means theEnvironment Protection and Biodiversity Conservation Act 1999 .
transitional period means the period of 90 business days (measured in Canberra), beginning on the first such business day that is on or after the commencement day.
25 Amendments apply to actions taken after commencement
(1) The amendments made by Part 1 of this Schedule apply in relation to an action involving unconventional gas development that is taken on or after the commencement day, even if the action began before that time, unless item 26, 27 or 28 of this Schedule applies in relation to the action.
(2) If:
(a) a proposal by a person to take the action was referred to the Minister under Division 1 of Part 7 of the main Act before the commencement day; and
(b) immediately before the commencement day, the Minister has not decided whether the action is a controlled action; and
(c) the Minister has given a notice under section 74 of the main Act in relation to the action;
the validity of the notice is not affected by the amendments and the Minister is not required to give another notice under that section.
(3) However, if, after the commencement day, the Minister receives comments in response to the invitation in the notice (and within the period specified in the notice) that relate to whether the action is a controlled action for the purposes of a provision of section 24D or 24E of the main Act as amended by Part 1 of this Schedule, the Minister's duty under subsection 75(1A) of the main Act to consider comments includes a duty to consider any such comments.
26 Amendments do not apply—certain referred proposals
(1) The amendments made by Part 1 of this Schedule do not apply in relation to an action taken on or after the commencement day if, immediately before the commencement day:
(a) an approval of the taking of the action is in operation under Part 9 of the main Act; or
(b) both:
(i) a decision that the action is not a controlled action is in operation under section 75 of the main Act; and
(ii) the decision was not made because the Minister believed the action would be taken in a particular manner.
(2) The amendments made by Part 1 of this Schedule do not apply in relation to an action taken on or after the commencement day if:
(a) immediately before that day, a decision that the action is not a controlled action is in operation under section 75 of the main Act; and
(b) the decision was made because the Minister believed the action would be taken in a particular manner; and
(c) the action is being taken in that manner.
(3) The amendments made by Part 1 of this Schedule do not apply in relation to an action taken on or after the commencement day if:
(a) a proposal by a person to take the action was referred to the Minister under Division 1 of Part 7 of the main Act before the commencement day; and
(b) immediately before the commencement day, all of the following circumstances exist:
(i) the Minister has not decided whether or not to approve the taking of the action for the purposes of any controlling provisions;
(ii) the person has been informed under section 131AA of the main Act of the decision the Minister proposes to make in relation to the action;
(iii) if section 131AB of the main Act applies—the Minister has obtained advice from the Independent Scientific Committee on Coal Seam Gas and Large Coal Mining Development in accordance with subsection 131AB(2) of the main Act.
27 Amendments do not apply—development currently in production
(1) The amendments made by Part 1 of this Schedule do not apply in relation to an action involving unconventional gas development taken on or after the commencement day if:
(a) the unconventional gas development does not involve the extraction of coal seam gas; and
(b) the unconventional gas development was in production (within the meaning of subitem (2)) before the commencement day; and
(c) immediately before the commencement day:
(i) the action was authorised by a petroleum production authorisation (within the meaning of subitem (3)); and
(ii) the action was not contravening a provision of Part 3 of the main Act; and
(d) the action continues to be authorised by the petroleum production authorisation.
(2) For the purposes of this item, a development is in production if the development is extracting or producing gas:
(a) commercially; and
(b) in accordance with the laws of the Commonwealth and of any State or Territory that apply in relation to the development.
(3) For the purposes of this item, a petroleum production authorisation is a licence, permit, or other authority granted under a law of the Commonwealth or a State or Territory, that authorises the extraction of petroleum for commercial production. However, it does not include a lease or licence that is primarily for the purpose of reservation, retention or exploration.
28 Amendments do not apply—development that has ceased operation
The amendments made by Part 1 of this Schedule do not apply in relation to an action involving unconventional gas development taken on or after the commencement day if:
(a) the unconventional gas development does not involve the extraction of coal seam gas; and
(b) immediately before the commencement day, the action was not contravening a provision of Part 3 of the main Act; and
(c) immediately before the commencement day, either or both of the following apply:
(i) extraction and production of gas by the development had permanently ceased;
(ii) post-production had permanently ceased.
29 Minister to decide whether amended provisions are controlling provisions for certain controlled actions
(1) This item applies in relation to an action if:
(a) a proposal by a person to take the action was referred to the Minister under Division 1 of Part 7 of the main Act before the commencement day; and
(b) the action involves unconventional gas development; and
(c) item 26 does not apply in relation to the action; and
(d) before the commencement day, the Minister decided under section 75 of the main Act that the action is a controlled action; and
(e) immediately before the commencement day, the Minister has not decided whether or not to approve the taking of action under Part 9 of the main Act.
(2) The Minister must, before the end of the transitional period, decide in accordance with this item whether any provisions of section 24D or 24E of the main Act as amended by Part 1 of this Schedule are controlling provisions for the action.
(3) Before making the decision, the Minister must give the person proposing to take the action a written notice:
(a) setting out the decision the Minister proposes to make; and
(b) inviting the person to give the Minister written comments on the proposed decision within 10 business days (measured in Canberra) of the day the notice is given to the person.
(4) Before making the decision, the Minister (the Environment Minister ) may:
(a) notify any other Minister whom the Environment Minister considers has administrative responsibilities relating to the proposed decision; and
(b) invite the relevant Minister to give the Environment Minister written comments on the proposed decision, within 10 business days (measured in Canberra).
(5) If the Minister believes on reasonable grounds that the Minister does not have enough information to make a decision under subitem (2), the Minister may request the person proposing to take the action to provide specified information relevant to making the decision.
(6) If the Minister requests further information under subitem (5), the period within which the Minister is required to make a decision under subitem (2) is extended by the number of business days in the period:
(a) starting on the day the Minister requests the information; and
(b) ending on the day the Minister receives the last of the information requested.
(7) In making a decision under subitem (2), the Minister must consider:
(a) any comments received within the period specified in an invitation given under paragraph (3)(b) or (4)(b); and
(b) any further information provided in response to a request made under subitem (5); and
(c) any information included in the referral of the proposal to take the action relating to whether the action is a controlled action; and
(d) any other information, or any comments, relating to whether the action is a controlled action received (whether before or after the commencement day) in response to an invitation made before the commencement day under section 74 of the main Act.
(8) Subsections 75(2), (2A) and (2B) of the main Act apply in relation to the Minister's decision under this item:
(a) as if it were a decision under that section; and
(b) as if references to matters protected by provisions of Part 3 were references to matters protected by provisions of sections 24D and 24E of the main Act as amended by Part 1 of this Schedule.
(9) Within 10 business days after making a decision under subitem (2), the Minister must:
(a) give written notice of the decision to the person proposing to take the action; and
(b) publish notice of the decision in accordance with any regulations made for the purposes of paragraph 77(1)(b) of the main Act.
(10) The Minister must give reasons for the decision to the person proposing to take the action if the person makes a written request, within 28 days of being given the notice, that the Minister do so. The Minister must do so as soon as practicable, and in any case, within 28 days of receiving the request.
(11) The main Act has effect, after the Minister makes a decision under subitem (2) (the new controlling provisions decision ), as if the decision mentioned in paragraph (1)(d) (theoriginal controlling provisions decision ) were varied to give effect to the new controlling provisions decision.
(12) The validity of the original controlling provisions decision, and any other decision made under Part 7, 8 or 9 of the main Act before the Minister made the new controlling provisions decision:
(a) is not affected by the making of the new controlling provisions decision; and
(b) cannot be revoked, varied, suspended, challenged, reviewed, set aside or called in question because of, or for reasons relating to:
(i) the making of the new controlling provisions decision; or
(ii) the variation of the original controlling provisions decision as described in subitem (11).
(13) Anything done by the Minister under this item is not invalid merely because it was not done within the period required by this item. However, this does not reduce or remove an obligation under this item to do a thing within a particular period.
30 Minister to consider whether assessment approach should be changed
(1) This item applies in relation to an action if:
(a) the Minister has decided under subitem 29(2) that provisions of sections 24D and 24E of the main Act as amended by Part 1 of this Schedule are controlling provisions for the action (the new controlling provisions decision ); and
(b) before the commencement day, the Minister had made a decision under section 87 of the main Act as to the approach to be used for assessment of the relevant impacts of the action.
(2) The Minister may, before the end of the period within which the Minister is required to make the new controlling provisions decision, decide whether, as a result of the new controlling provisions decision, a different approach should be used for assessment of the relevant impacts of the action.
(3) If the Minister believes on reasonable grounds that the Minister does not have enough information to make a decision under subitem (2), the Minister may request the person proposing to take the action to provide specified information relevant to making the decision.
(4) If the Minister requests further information under subitem (3), the period within which the Minister is required to make a decision under subitem (2) is extended by the number of business days in the period:
(a) starting on the day the Minister requests the information; and
(b) ending on the day the Minister receives the last of the information requested.
(5) In making a decision under subitem (2), the Minister must consider:
(a) any further information provided in response to a request made under subitem (3); and
(b) any comments or information received or provided as mentioned in paragraph 29(7)(a) and (b) relating to the approach to be used for assessment of the relevant impacts of the action; and
(c) any information included in the referral of the proposal to take the action relating to the approach to be used for assessment of the relevant impacts of the action; and
(d) any other information, or any comments, relating to the approach to be used for assessment of the relevant impacts of the action received (whether before or after the commencement day) in response to an invitation made before the commencement day under section 74 of the main Act.
(6) Subsections 82(1) and (4) of the main Act apply in relation to the Minister's decision under subitem (2), as if references in those provisions to controlling provisions were references to provisions of sections 24D and 24E of the main Act as amended by Part 1 of this Schedule.
(7) Within 10 business days after making a decision under subitem (2), the Minister must:
(a) give written notice of the decision to the person proposing to take the action; and
(b) publish notice of the decision in accordance with any regulations made for the purposes of paragraph 91(1)(b) of the main Act.
(8) The Minister must give reasons for the decision to the person proposing to take the action if the person makes a written request, within 28 days of being given the notice, that the Minister do so. The Minister must do so as soon as practicable, and in any case, within 28 days of receiving the request.
(9) The main Act has effect, after the Minister makes a decision under subitem (2) (the new assessment approach decision ), as if the decision mentioned in paragraph (1)(b) (theoriginal assessment approach decision ) were varied to give effect to the new assessment approach decision.
(10) The validity of the original assessment approach decision, and any other decision made under Part 7, 8 or 9 of the main Act before the Minister made the new assessment approach decision:
(a) is not affected by the making of the new assessment approach decision; and
(b) cannot be revoked, varied, suspended, challenged, reviewed, set aside or called in question because of, or for reasons relating to:
(i) the making of the new assessment approach decision; or
(ii) the variation of the original assessment approach decision as described in subitem (9).
(11) Anything done by the Minister under this item is not invalid merely because it was not done within the period required by this item. However, this does not reduce or remove an obligation under this item to do a thing within a particular period.
31 Transitional rules
(1) The Minister may, by legislative instrument, make rules prescribing matters of a transitional nature (including prescribing any saving or application provisions) relating to the amendments or repeals made by Part 1 of this Schedule.
(2) Rules made before the end of the period of 6 months starting on the commencement day may provide that provisions of this Part have effect with any modifications prescribed by the rules. The provisions then have effect as if they were so modified.
(3) To avoid doubt, the rules may not do the following:
(a) create an offence or civil penalty;
(b) provide powers of:
(i) arrest or detention; or
(ii) entry, search or seizure;
(c) impose a tax;
(d) set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Schedule or the main Act;
(e) directly amend the text of this Schedule or the main Act.
(4) This Schedule (other than subitem (3)) does not limit the rules that may be made under this item.
We know this planned gas fracking will make climate change worse. We know if this fracking goes ahead we may not be able to live on country like we have for thousands and thousands of years. We need your help to keep our culture, our water, our climate and our children's futures safe.
We recommend that the NRM (Nature Repair Market) Bill be delayed until Parliament has been presented with key EPBC reforms, including proposed National Environmental Standards for environmental offsets, regional planning, and threatened species protection, to demonstrate that a rigorous and high integrity regulatory system will support the operation of the Nature Repair Market.
I'm proposing to release those exposure drafts in the second half of this year so people will be able to comment on the proposed changes that we're making.
The committee divided. [20:34]
(The Chair—Senator McLachlan)
(1) Page 1 (line 1) to page 8 (line 22), omit " Market " (wherever occurring).
(1) Clause 1, page 1 (line 16), omit "Market".
(2) Page 4 (line 21) to page 245 (line 16), omit "Nature Repair Market Committee" (wherever occurring), substitute "Nature Repair Committee".
(3) Clause 7, page 11 (after line 8), after the definition of engage in conduct , insert:
environmental offsetting measure includes, but is not limited to, a measure to offset or compensate for the impacts of an action or project (however described) on the environment that is:
(a) required as a condition of an approval, licence or permit (however described) under a law of the Commonwealth, a State or a Territory; or
(b) directly financed from a fund into which money is paid as a condition of an environmental approval, licence or permit (however described) under a law of the Commonwealth, a State or a Territory; or
(c) undertaken as required or agreed to under a penalty or enforceable undertaking imposed or accepted under a law of the Commonwealth, a State or a Territory.
(4) Clause 7, page 11 (lines 9 to 13), omit the definition of environmental offsetting purpose , substitute:
environmental offsetting purpose means the purpose of meeting an environmental offsetting requirement (however described) under a law of the Commonwealth, a State or a Territory including through an environmental offsetting measure.
(5) Clause 68, page 95 (lines 18 to 20), omit subclause (1A).
(6) Clause 70, page 97 (lines 2 to 8), omit subclause (3), substitute:
(3) A biodiversity certificate must set out such matters (if any) as are specified in the rules.
(8) Clause 71, page 98 (line 20), omit "or 70B".
(9) Clause 76A, page 100 (lines 16 to 22), omit the clause, substitute:
76A Biodiversity certificates not to be used for environmental offsetting purpose
(1) A biodiversity certificate must not be used for an environmental offsetting purpose.
(2) This section has effect despite any other provision of this Act or any other law of the Commonwealth, or a State or Territory.
(3) To avoid doubt, section 225 (Concurrent operation of State and Territory laws) does not apply to this section.
(10) Clause 164, page 187 (lines 12 to 22), omit paragraphs (1)(da) and (db).
(11) Clause 212, page 234 (lines 20 and 21), omit paragraph (fa).
(7) Clause 70B, page 97 (line 25) to page 98 (line 13), to be opposed.
SHEET 2310
(1) Clause 198, page 226 (lines 3 to 8), omit subclause (4), substitute:
(4) The Minister must ensure that at all times at least one Nature Repair Market Committee member is a person who:
(a) belongs to an Australian First Nations community; and
(b) is recognised in that community as a person with significant standing; and
(c) has substantial experience or knowledge relevant to the functions of the Committee.
_____
SHEET 2311
(1) Clause 3, page 2 (before line 12), before paragraph (a), insert:
(aa) to halt and reverse nature loss, and prevent extinctions, by increasing the health, abundance, diversity and resilience of species, populations and ecosystems; and
(ab) to contribute to the goal of protecting and conserving by 2030:
(i) 30% of land in Australia; and
(ii) 30% of Australian waters; and
The committee divided. [20:40]
(The Chair—Senator McLachlan)
(1) Clause 192, page 219 (lines 8 to 11), omit subclause (2), substitute:
Authorised person
(2) For the purposes of Part 7 of the Regulatory Powers Act, each of the following persons is an authorised person in relation to the provisions mentioned in subsection (1):
(a) the Chair of the Regulator;
(b) any other person, whether the rights or interests of the person are affected.
(2) Clause 192, page 219 (lines 12 to 14), omit "An authorised person may, in writing, delegate the authorised person's powers and functions under Part 7 of the Regulatory Powers Act", substitute "The Chair of the Regulator may, in writing, delegate the Chair's powers and functions under Part 7 of the Regulatory Powers Act as an authorised person".
(3) Clause 211, page 233 (after line 8), at the end of the clause, add:
There is extended standing for judicial review under the Administrative Decisions (Judicial Review) Act 1977 in relation to decisions made under this Act.
(4) Page 237 (after line 29), at the end of Part 20, add:
Division 3 — Review of administrative decisions
217A Extended standing for judicial review
(1) This section extends (and does not limit) the meaning of the term person aggrieved in theAdministrative Decisions (Judicial Review) Act 1977 for the purposes of the application of that Act in relation to:
(a) a decision made under this Act; or
(b) a failure to make a decision under this Act; or
(c) conduct engaged in for the purpose of making a decision under this Act.
(2) Any individual is taken to be a person aggrieved by the decision, failure or conduct.
(3) A term (except person aggrieved ) used in this section and in theAdministrative Decisions (Judicial Review) Act 1977 has the same meaning in this section as it has in that Act.
The committee divided. [20:44]
(The Chair—Senator McLachlan)
(1) Clause 55, page 77 (line 15), before "The Minister", insert: "(1)".
(2) Clause 55, page 77 (lines 23 to 26), omit the note.
(3) Clause 55, page 77 (after line 26), at the end of the clause, add:
(2) Despite regulations made for the purposes of paragraph 44(2)(b) of the Legislation Act 2003 , section 42 (disallowance) of that Act applies to a direction by the Minister under subsection (1).
Note: Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 does not apply to the direction (see regulations made for the purposes of paragraph 54(2)(b) of that Act).
(4) Clause 65A, page 92 (line 18), before "The Minister", insert: "(1)".
(5) Clause 65A, page 92, (lines 26 to 29), omit the note.
(6) Clause 65A, page 92 (after line 29), at the end of the clause, add:
(2) Despite regulations made for the purposes of paragraph 44(2)(b) of the Legislation Act 2003 , section 42 of that Act applies to a direction by the Minister under subsection (1).
Note: Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 does not apply to the direction (see regulations made for the purposes of paragraph 54(2)(b) of that Act).
(1) Heading to clause 56, page 78 (line 3), at the end of the heading, add "—general".
(2) Page 79 (after line 7), at the end of Subdivision E, add:
56A Consultation by the Nature Repair Market Committee — Aboriginal persons and Torres Strait Islanders
The Nature Repair Market Committee must not advise the Minister whether the Minister should make or vary a methodology determination unless the Committee is satisfied that:
(a) appropriate consultation has been undertaken with any relevant local community of Aboriginal persons, or Torres Strait Islanders, in relation to the proposed determination or variation; and
(b) relevant input received as part of that consultation has been taken into account adequately.
(3) Heading to clause 65, page 91 (line 11), at the end of the heading, add "—general".
(4) Page 92 (after line 15), after clause 65, insert:
65AA Consultation by the Nature Repair Market Committee — Aboriginal persons and Torres Strait Islanders
The Nature Repair Market Committee must not advise the Minister whether the Minister should make or vary a biodiversity assessment instrument unless the Committee is satisfied that:
(a) appropriate consultation has been undertaken with any relevant local community of Aboriginal persons, or Torres Strait Islanders, in relation to the proposed instrument or variation; and
(b) relevant input received as part of that consultation has been taken into account adequately.
The committee divided. [20:48]
(The Chair—Senator McLachlan)
(1) Clause 3, page 3 (lines 3 and 4), omit "the owners of that knowledge", substitute ", and with the consent of, the owners of that knowledge to ensure the intellectual property rights of those owners are respected".
The committee divided. [20:52]
(The Chair—Senator McLachlan)
The Senate divided. [20:59]
(The President—Senator Lines)
Economic Inclusion Advisory Committee Bill 2023
At the end of the motion, add ", but the Senate calls on the Government to ensure that membership of the permanent Economic Inclusion Advisory Committee must include people with direct contemporary experience of poverty and sufficient representation of people most impacted by economic disadvantage including First Nations people, disabled people, women, and carers".
The Senate divided. [21:03]
(The President—Senator Lines)
The Senate divided. [21:09]
(The President—Senator Lines)
(1) Clause 6, page 4 (line 14), omit "and an economist", substitute ", an economist and a person with direct contemporary experience of living with a low income and economic exclusion".
(2) Clause 11, page 8 (line 27), at the end of subclause (2), add:
; (g) a person who has direct contemporary experience of living with a low income and economic exclusion.
(3) Clause 11, page 8 (after line 30), after paragraph (3)(a), insert:
(aa) ensure that at least one of those members is a person with disability; and
(ab) have regard to the desirability of the membership of the Committee being persons who are actively involved in policy, advocacy and peer support work related to economic exclusion; and
The Senate divided. [21:13]
(The President—Senator Lines)
(1) Clause 3, page 2 (line 15), omit "function is to", substitute "functions are to develop national poverty measures and targets and".
(2) Clause 6, page 4 (line 5), omit "function is to", substitute "functions are to develop national poverty measures and targets and".
(3) Clause 6, page 4 (line 21), omit "function", substitute "functions".
(4) Heading to Division 2, page 5 (line 1), omit "function", substitute "functions".
(5) Heading to clause 8, page 5 (lines 5 and 6), omit "function—reports ahead of Commonwealth Government budgets", substitute "functions".
(6) Clause 8, page 5 (lines 7 and 8), omit subclause (1), insert:
(1) The Committee's functions are to:
(a) develop national poverty measures and national poverty targets; and
(b) report to the Joint Ministers ahead of each Commonwealth Government budget.
(7) Clause 8, page 6 (after line 14), after subclause (4), insert:
(4A) Without limiting subsection (2), the report must include advice about the national poverty measures and national poverty targets developed by the Committee under paragraph (1)(a).
(8) Clause 9, page 7 (line 8), omit "function", substitute "functions".
(9) Clause 11, page 8 (line 21), omit "function", substitute "functions".
(10) Clause 21, page 12 (line 4), omit "function", substitute "functions".
(11) Clause 24, page 13 (line 9), omit "function", substitute "functions".
(12) Clause 28, page 15 (line 2), omit "function", substitute "functions".
The Senate divided. [21:16]
(The President—Senator Lines)
(1) Clause 8, page 6 (lines 20 to 27), omit subclause 8(6), substitute:
Direction by Joint Ministers
(6) The Joint Ministers may, by written notice to the Chair, direct the Committee to ensure that a particular report under this section at least addresses specified matters mentioned in subsection (2).
SHEET 2162
(1) Clause 4, page 3 (after line 5), after the definition of Committee , insert:
Community Affairs References Committee means the Senate Community Affairs References Committee, or such other committee constituted under a resolution of the Senate.
(2) Clause 11, page 8 (after line 11), after subclause (1), insert:
(1A) Before the Minister appoints the Chair and other members of the Committee:
(a) the Minister must have referred the proposed appointment to the Community Affairs References Committee under section 26A; and
(b) one of the following must have occurred:
(i) the Community Affairs References Committee was taken to have approved the proposed appointment under subsection (4) of that section;
(ii) the Community Affairs References Committee has notified the Minister that it has decided to approve the proposed appointment.
(3) Page 14 (after line 13), after clause 26, insert:
26A Community Affairs References Committee—approval or rejection of proposed appointment
(1) The Community Affairs References Committee must approve or reject a proposed appointment for the Chair and other members of the Committee referred to the Community Affairs References Committee by the Minister.
(2) The Community Affairs References Committee must make the decision on a proposed appointment within :
(a) 14 days after the referral; or
(b) if, within the first 14 days after the referral, the Community Affairs References Committee notifies the Minister that it requires additional time to consider the referral—44 days after the referral.
(3) As soon as practicable after making the decision, the Community Affairs References Committee must:
(a) give the Minister written notice of the decision; and
(b) report the decision to the Senate.
(4) The Community Affairs References Committee is taken to have approved the proposed appointment if the Community Affairs References Committee does not give notice under subsection (3) within the period specified in paragraph (2)(a) or (b) as the case requires.
_____
SHEET 2165
(1) Clause 8, page 5 (lines 19 and 20), omit "including options to boost economic inclusion and tackle disadvantage", substitute "with a specific focus on the reduction of poverty".
(2) Clause 8, page 6 (after line 5), after subclause (2), insert:
(2B) Without limiting subsection (2), the report must include, in relation to the period since the last Commonwealth Government budget was delivered in the House of Representatives, the following information about access and eligibility for income support payments:
(a) data and analysis on the suspension and cancellation of income support payments resulting from a recipient's failure to meet mutual obligation requirements;
(b) for each kind of income support payment:
(i) the number of debts raised; and
(ii) the number of debts repealed;
(c) data and analysis on key points of disengagement from the social security system;
(d) the adequacy of income support payments, including whether income support payments ensure that recipients are above the poverty line.
(3) Clause 8, page 6 (line 5), at the end of subclause (2), add:
; (h) the eradication of poverty.
_____
SHEET 2304
(1) Clause 17, page 11 (after line 14), at the end of the clause, add:
(5) The Chair must give written notice to the Joint Ministers setting out the interests that have been disclosed to the Committee under subsection (1) as soon as practicable after the end of the meeting in which the disclosure was made.
(2) Page 11 (after line 14), after clause 17, insert:
17A Minister must establish register of interests
(1) The Minister must establish and maintain a register of interests setting out:
(a) the interests that have been included in a written notice given to the Joint Ministers under section 16 or subsection 17(5); and
(b) any other information prescribed by the regulations.
(2) The Minister must cause the register of interests to be:
(a) published on the Department's website; and
(b) updated as soon as practicable following written notice being given to the Joint Ministers under section 16 or subsection 17(5).
(3) If a person ceases to be a member of the Committee the Minister must remove information about the person from the register as soon as practicable after the Minister becomes aware that the person is no longer a member.
(4) The regulations must make provision for, or in relation to:
(a) the correction of information that is included in the register, including how a person may seek the correction of information that is about the person; and
(b) any other matter relating to the administration or operation of the register.
The Senate divided. [21:20]
(The President—Senator Lines)
(1) Clause 14, page 10 (after line 6), after subclause (2), insert:
(2A) If a member of the Committee is a person who has direct contemporary experience of living with a low income and economic exclusion, that member is to be paid allowances appropriate to the circumstances of the member and having regard to the time and expertise the member contributes to the work of the Committee, including:
(a) any preparation undertaken by the member for a meeting of the Committee; and
(b) any other activity undertaken by the member relevant to the Committee's function.
The Senate divided. [21:24]
(The President—Senator Lines)
(1) Clause 8, page 7 (after line 4), at the end of the clause, add:
Government response to report
(10) Within 3 months after the report is published on the Department's website under subsection (9):
(a) the Joint Ministers must cause a written statement to be prepared setting out the Commonwealth Government's response to the Committee's report, including its response to each recommendation; and
(b) the Minister must cause the statement to be published on the Department's website.
SHEET 2296
(1) Clause 19, page 11 (lines 21 to 23), omit the clause, substitute:
19 Termination of appointment
(1) The Minister may terminate the appointment of a member of the Committee:
(a) for misbehaviour; or
(b) if the member is unable to perform the duties of the member's office because of physical or mental incapacity.
(2) The Minister may terminate the appointment of a member of the Committee if:
(a) the member:
(i) becomes bankrupt; or
(ii) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or
(iii) compounds with the member's creditors; or
(b) the member is absent, except on leave of absence, from 3 consecutive meetings of the Committee; or
(c) the member fails, without reasonable excuse, to comply with section 16 (disclosure of interests to Joint Ministers) or section 17 (disclosure of interests to Committee).
(3) The Minister may terminate the appointment of a member of the Committee if the Minister is satisfied that, because of a change of circumstances occurring after the member's appointment, the member is no longer a representative of the kind covered by subsection 11(2).
_____
SHEET 2297
(1)—Clause 8, page 7 (line 4), after "website", insert "at least 14 days before the Commonwealth Government budget is delivered in the House of Representatives".
_____
SHEET 2298
(1) Page 13 (after line 12), at the end of Part 2, add:
24A Joint Ministers to attend meetings and provide advice or assistance
(1) The Minister is to attend 1 meeting of the Committee each financial year.
(2) The Treasurer is to attend 1 meeting of the Committee each financial year.
(3) The Joint Ministers:
(a) may provide any reasonable advice or assistance requested by the Chair for the purposes of the performance of the Committee's function; but
(b) must not take part in any decision of the Committee about matters or advice to be included by the Committee in a report under section 8.
(1) Clause 28, page 15 (lines 4 and 5), omit "5 years", substitute "3 years".
(1)—Clause 8, page 6 (after line 9), after paragraph (3)(a), insert:
(aa) the eradication of poverty;
Public Health (Tobacco and Other Products) Bill 2023
Public Health (Tobacco and Other Products) (Consequential Amendments and Transitional Provisions) Bill 2023
The Senate divided. [21:30]
(The President—Senator Lines)
Treasury Laws Amendment (Making Multinationals Pay Their Fair Share—Integrity and Transparency) Bill 2023
At the end of the motion, add ", but the Senate:
(a) notes that:
(i) the former Coalition Government implemented more than a dozen measures to combat multinational tax avoidance including by:
(A) playing a leading role in the original OECD Base Erosion and Profit Shifting project, and committing to the OECD two-pillar solution to multinational tax, and
(B) introducing the Multinational Tax Avoidance Law; the Diverted Profits Tax; strengthening the thin capitalisation and transfer pricing rules; doubling penalties for multinational tax avoidance; and establishing the Tax Avoidance Taskforce,
(ii) despite promising to only raise taxes on multinationals at the election, the Labor Government have broken promises to:
(A) raise taxes on superannuation, unrealised capital gains and franking credits, and
(B) end small business tax incentives,
(iii) this bill introduces major tax changes that have not been subject to an appropriate public consultation, demonstrating yet again that Labor does not understand business and refuses to implement regulations and policies to support business, which then grow the economy and employ Australians,
(iv) the Senate Economics Legislation Committee heard evidence that the bill—far from being limited to multinationals and tax avoidance—will increase taxes on Australian companies, harm investment in Australian industries, and negatively affect housing affordability in Australia; and
(b) calls on the Government to withdraw Schedule 2 to the bill and undertake an appropriate consultation with industry and tax bodies to ensure the bill does not hurt Australians jobs, industries and businesses".
Omit all words after "That", substitute:
(a) the Senate notes that:
(i) the bill, as currently drafted, is not suitable for an industry like plantation forestry because the harvesting period for structural timbers used for buildings is between 30 to 50 years, and if passed this bill would damage the plantation forestry industry and prevent expansion significantly at time when a strong forestry industry is critical to relieving supply chain issues within the domestic construction industry and to our competitiveness internationally,
(ii) the third party debt test in the bill does not accommodate non-consolidated tax structures such as trusts, which are a common commercial vehicle, particularly in the property and infrastructure sector, and that in its current form the bill will impede the delivery of 150,000 new homes that could reduce rental costs for Australians, and
(iii) the bill, as currently drafted, favours industry superannuation funds over managed investment trusts, attribution managed investment trusts and corporate collective investment vehicles by exempting superannuation funds from the associate entity test, which is designed to determine whether an entity is subject to the thin capitalisation rules; and
(b) further consideration of the bill be postponed until the day after the Senate passes a resolution that it is of the opinion that each of the following conditions has been met:
(i) the Treasury has consulted with industry on the bill for a period of no less than three months and that consultation has appropriately considered:
(A) how the bill can be amended to account for the unique long-term nature of the plantation forestry sector, and
(B) how the third party debt test be amended to accommodate non-consolidated tax structures such as trusts to deliver more housing supply into the market, and
(ii) the Government has circulated amendments to the bill that either exempt similar funds from the associate entity test or removes the exemption for superannuation funds.
Omit all words after "That", substitute:
(a) the Government amendments to the Treasury Laws Amendment (Making Multinationals Pay Their Fair Share—Integrity and Transparency) Bill 2023 on sheet RU100 be referred to the Economics Legislation Committee for inquiry and report by 5 February 2024; and
(b) further consideration of the bill be made an order of the day for the first sitting day after the committee has presented its report.
The Senate divided. [21:39]
(The President—Senator Lines)