Statutes Amendment (Terror Suspect Detention) Bill

Final Stages

The Legislative Council agreed to the bill with the amendments indicated by the following schedule, to which amendments the Legislative Council desires the concurrence of the House of Assembly.

No. 1. Long title—Delete 'and the Police Act 1998' and substitute:

the Police Act 1998; and the Young Offenders Act 1993

No. 2. Clause 5, page 4, line 12 [clause 5, inserted section 3B(1)(b)(i)]—Before 'has' insert 'is or'

No. 3. Clause 5, page 4, after line 14 [clause 5, page 4, inserted section 3B(1)(b)]—

After subparagraph (ii) insert:

(iii) is, or has previously been, the subject of a control order under Part 5.3 of the Commonwealth Criminal Code

No. 4. Clause 8, page 5, line 9—Delete '(e)' and substitute '(f)'

No. 5. Clause 8, page 5, line 11—Delete '(f)' and substitute '(g)'

No. 6. Clause 9, page 5, lines 14 to 18 [clause 9, inserted section 19B]—

Delete inserted section 19B and substitute:

19B—Arrest of person who is or becomes a terror suspect

(1) If—

(a) a person who has been released under a bail agreement becomes a terror suspect while subject to the bail agreement; or

(b) a terror suspect who has been released under a bail agreement is the subject of a certificate issued by the Commissioner of Police under this section,

the bail agreement is taken to be revoked and a police officer may arrest the person without warrant.

(2) The Commissioner of Police may issue a certificate for the purposes of this section in relation to a terror suspect who has been released under a bail agreement certifying that the Commissioner is satisfied that significant new information has come to light in relation to the person that should be considered by a bail authority.

(3) In any proceedings, a document that appears to be a certificate issued by the Commissioner of Police under this section may be admitted in evidence and is proof, in the absence of proof to the contrary, of the matter so certified.

No. 7. Clause 11, page 6, line 24 [clause 11(3), inserted subsection (4)(a)]—After 'is' insert:

, or has previously been,

No. 8. Clause 11, page 6, after line 26 [clause 11(3), inserted subsection (4)]—After paragraph (c) insert:

(d) is, or has previously been, the subject of a control order under Part 5.3 of the Commonwealth Criminal Code.

No. 9. Clause 14, page 7, line 8 [clause 14, inserted section 74B(1)]—After 'on parole' insert:

or a terror suspect is, while on parole, the subject of a certificate issued by the Commissioner of Police under subsection (9)

No. 10. Clause 14, page 8, after line 7—After inserted subsection (8) insert:

(9) The Commissioner of Police may issue a certificate for the purposes of this section in relation to a terror suspect who is on parole certifying that the Commissioner is satisfied that significant new information has come to light in relation to the person that should be considered by the presiding member of the Board.

(10) In any proceedings, a document that appears to be a certificate issued by the Commissioner of Police under this section may be admitted in evidence and is proof, in the absence of proof to the contrary, of the matter so certified.

No. 11. Clause 20, page 10, line 36 [clause 20, inserted section 5A(1)(a)]—After 'is' insert:

, or has previously been,

No. 12. Clause 20, page 10, after line 38 [clause 20, inserted section 5A(1)]—After paragraph (c) insert:

(d) is, or has previously been, the subject of a control order under Part 5.3 of the Commonwealth Criminal Code.

No. 13. New Part, page 15, after line 43—Insert:

Part 6—Amendment of Young Offenders Act 1993

28—Amendment of section 4—Interpretation

(1) Section 4(1)—after the definition of Chief Executive insert:

Commonwealth Criminal Code means the Criminal Code set out in the Schedule to the Criminal Code Act 1995 of the Commonwealth, or a law of the Commonwealth that replaces that Code;

(2) Section 4(1)—after the definition of Department insert:

designated member means the member of the Training Centre Review Board designated by the Attorney-General in accordance with subsection (3) and includes any member designated by the Attorney-General in accordance with that subsection to act in the absence of that designated member;

(3) Section 4(1)—after the definition of spouse insert:

terrorism intelligence authority means a terrorism intelligence authority designated by regulations under section 74B of the Police Act 1998;

terrorism notification means a terrorism notification under section 74B of the Police Act 1998;

terrorist offence means—

(a) an offence against Division 72 Subdivision A of the Commonwealth Criminal Code (International terrorist activities using explosive or lethal devices); or

(b) a terrorism offence against Part 5.3 of the Commonwealth Criminal Code (Terrorism) where the maximum penalty is 7 or more years imprisonment; or

(c) an offence against Part 5.5 of the Commonwealth Criminal Code (Foreign incursions and recruitment), except an offence against subsection 119.7(2) or (3) (Publishing recruitment advertisements); or

(d) an offence against the repealed Crimes (Foreign Incursions and Recruitment) Act 1978 of the Commonwealth, except an offence against paragraph 9(1)(b) or (c) of that Act (Publishing recruitment advertisements); or

(e) an offence of a kind prescribed by the regulations for the purposes of this definition;

terror suspect—see subsection (4);

(4) Section 4—after subsection (2) insert:

(3) The Attorney-General may, from time to time, by written instrument—

(a) designate a member of the Training Centre Review Board who is a member of the Court's judiciary as the designated member for the purposes of sections 41BA and 43; and

(b) designate another member of the Training Centre Review Board who is a member of the Court's judiciary to act for the purposes of those sections in the absence of the designated member,

and in any proceedings, a certificate purporting to be executed by the Attorney-General certifying as to a matter relating to a designation under this subsection may be admitted in evidence and is proof, in the absence of proof to the contrary, of the matter so certified.

(4) A youth is a terror suspect for the purposes of this Act if the youth—

(a) is, or has previously been, charged with a terrorist offence; or

(b) has ever been convicted of a terrorist offence; or

(c) is the subject of a terrorism notification; or

(d) is, or has previously been, the subject of a control order under Part 5.3 of the Commonwealth Criminal Code.

(5) For the purposes of subsection (4)(a), a youth is only taken to have been charged with an offence if an information or other initiating process charging the youth with the offence has been filed in a court.

29—Amendment of section 39—Reviews etc and proceedings of Training Centre Review Board

Section 39(2)(b)—after 'recidivist young offender' insert 'or a terror suspect'

30—Amendment of section 41—Application and interpretation of Subdivision

Section 41(2)—after 'recidivist young offender' insert 'or a terror suspect'

31—Insertion of section 41BA

After section 41B insert:

41BA—Suspension of conditional release if youth is or becomes a terror suspect

(1) If a youth becomes a terror suspect while released subject to conditions under this Division or a terror suspect is, while released subject to conditions under this Division, the subject of a certificate issued by the Commissioner of Police under subsection (9)—

(a) the designated member must, on becoming aware of that fact, issue a warrant for the arrest of the youth; and

(b) on the warrant being so issued, the youth's entitlement to conditional release from detention is suspended until a determination is made under this section.

(2) A warrant issued under this section authorises the detention of the youth in custody pending the making of a determination under this section.

(3) The designated member must, as soon as practicable, determine whether there are special circumstances justifying the youth's continued release from detention.

(4) A terrorism intelligence authority is entitled to be heard by the designated member in relation to the making of a determination under this section.

(5) The designated member is not required to provide to the youth any grounds or reasons for a determination under this section.

(6) Information forming the basis for the making of a determination under this section must not be disclosed to any person (except to the Attorney-General, a court or a person to whom a terrorism intelligence authority authorises its disclosure) if, at the time at which the question of disclosure is to be decided, the information is properly classified by the terrorism intelligence authority as terrorism intelligence under section 74B of the Police Act 1998 (whether or not the information was so classified at the time at which the determination under this section was made).

(7) If the designated member determines that there are special circumstances justifying the youth's continued release from detention, the suspension under this section is lifted and, on release from custody under this section, the youth will continue to be released subject to the conditions for the balance of the unexpired period of the detention order.

(8) If the designated member determines that there are not special circumstances justifying the youth's continued release from detention, the youth—

(a) must be returned to detention under the original order; and

(b) is liable to serve the balance of the sentence unexpired as at the date on which the youth was taken back into custody under this section; and

(c) will be taken to have been serving that balance of sentence during any period spent in custody pending the making of a determination by the designated member under this section.

(9) The Commissioner of Police may issue a certificate for the purposes of this section in relation to a terror suspect who has been released from detention subject to conditions under this Division certifying that the Commissioner is satisfied that significant new information has come to light in relation to the youth that should be considered by the designated member.

(10) In any proceedings, a document that appears to be a certificate issued by the Commissioner of Police under this section may be admitted in evidence and is proof, in the absence of proof to the contrary, of the matter so certified.

32—Insertion of Part 5 Division 4

After section 42A insert:

Division 4—Terror suspects

43—Special procedures for terror suspects

(1) Despite any other provision of this Part, a decision of the Youth Parole Board relating to a youth who is a terror suspect is of no effect unless it is confirmed by the designated member in accordance with this section.

(2) The designated member must, before confirming a decision relating to a youth who is a terror suspect, invite a terrorism intelligence authority to make submissions to the designated member in relation to the proposed decision.

(3) The designated member—

(a) must not confirm a decision of the Board to release a youth who is a terror suspect from detention unless the designated member determines that there are special circumstances justifying the youth's release; and

(b) must not confirm any other decision of the Board relating to a youth who is a terror suspect unless the presiding member is satisfied that the decision is appropriate in all the circumstances.

(4) The designated member may determine to—

(a) confirm a decision of the Board (in which case the decision of the Board is taken to have effect immediately); or

(b) reject a decision of the Board and substitute the designated member's own decision (in which case the Board is taken to have made the decision as so substituted and that decision is taken to have effect immediately); or

(c) refer the matter back to the Board for a further decision with any recommendations the designated member thinks fit (in which case any further decision of the Board will be subject to the requirement for confirmation under this section in the same way as the decision at first instance).

(5) The designated member is not required to provide to the youth any grounds or reasons for a determination under this section.

(6) Information forming the basis for the making of a determination under this section must not be disclosed to any person (except to the Attorney-General, a court or a person to whom a terrorism intelligence authority authorises its disclosure) if, at the time at which the question of disclosure is to be decided, the information is properly classified by the terrorism intelligence authority as terrorism intelligence under section 74B of the Police Act 1998 (whether or not the information was so classified at the time at which the determination under this section was made).

33—Transitional provision

(1) The amendments to the Young Offenders Act 1993 effected by this Act apply in relation to—

(a) a youth who is serving a period of detention in a training centre; or

(b) a youth who is released subject to conditions in accordance with Part 5 Division 3 of the Young Offenders Act 1993,

on or after the commencement of this Part (regardless of when the relevant offence was committed).

(2) The reference in section 41BA of the Young Offenders Act 1993 (as amended by this Act) to a person becoming a terror suspect includes a person who, on the commencement of this Part, becomes a terror suspect because they are a person to whom section 4(4) of the Young Offenders Act 1993 (as amended by this Act) applies.

At 19:26 the house adjourned until Thursday 30 November 2017 at 10:30.