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Legislative Council - Fifty-Third Parliament, Second Session (53-2)
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Statutes Amendment (Terror Suspect Detention) Bill

Second Reading

Adjourned debate on second reading.

(Continued from 16 November 2017.)

The Hon. J.A. DARLEY (11:40): I rise to indicate Advance SA's support for this bill. In a nutshell, the bill will see those who have been charged with a terrorism offence have bail or parole presumed against them unless they can provide a compelling reason for why they should be bailed or paroled. The bill also provides mechanisms for a terrorism notification to be made against an individual, in which case bail or parole will also be presumed against them. This is the government's response to protecting the community from terror suspects. It is unfortunate that we live in a day and age where this is necessary; nonetheless, it is necessary and I support these measures.

With regard to terrorism notifications, I have a question as to what stage people are advised that a notification is being made against them. I understand it will not be a matter of course that people will be told when a terror notification is made against them. I am not suggesting that this should be the case; I can see that this would, in fact, be counter-productive for intelligence-gathering purposes. However, if a person has had notification made against them, and is arrested for an unrelated offence—say, armed robbery—they will have bail presumed against them and they will not know why.

Similarly, if a terrorism notification is being made against a person who is already incarcerated, their application for parole will be kiboshed for reasons they are not aware of. I would appreciate the government advising whether people in these and similar circumstances will be told or otherwise made aware of the terrorism notification made against them.

The Hon. K.J. MAHER (Minister for Employment, Minister for Aboriginal Affairs and Reconciliation, Minister for Manufacturing and Innovation, Minister for Automotive Transformation, Minister for Science and Information Economy) (11:42): I thank honourable members for their contribution on this. I note there were a couple of questions posed by the Hon. John Darley. If it is okay with him, I might answer them at clause 1 during the bill. That way, if anything in my answers gives rise to further questions, I can get further and better particulars for him on that. With that, I commend the bill to the chamber.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. K.J. MAHER: There were a couple of questions asked by the Hon. John Darley that I will address in a moment, but, as we occasionally do in this place, where a member has not, for whatever reason, contributed on the second reading, they often use the opportunity to do that at clause 1. I have a couple of things that probably would have been good to put in the second reading that I will now do at clause 1, like I will for the Hon. John Darley.

The bill that we are introducing now reflects a decision of the First Ministers at the Council of Australian Governments meeting on 9 June 2017 that there be a presumption against bail and parole for persons who have demonstrated support for, or have links to, terrorist activity. In this regard the bill amends the Bail Act and the Correctional Services Act. The bill, however, extends this basic principle to also provide that a terror suspect, as defined in the bill, is a person in respect of whom the Attorney-General can apply to the Supreme Court under the Criminal Law (High Risk Offenders) Act for an extended supervision order and, potentially, a continuing detention order.

With some minor variation in the bill, a terror suspect is generally a person with a history of charges or conviction for terrorist offences, or a person who is the subject of a terrorism notification made under amendments made to the bill by the Police Act. The government has filed a number of amendments in this bill to further refine these provisions.

No.1: a terror suspect will also include a person who has previously been the subject of a control order under part 5.3 of the Commonwealth Criminal Code. A control order is generally a counter-terrorism measure.

No. 2: a person who is a terror suspect and who is in the community because they have been able to rebut the presumption against bail and parole will be liable to having their bail revoked or parole suspended if the Commissioner of Police certifies that he or she is satisfied that significant new information has come to light in relation to the person who should be considered by a bail or parole authority.

No.3: a terror suspect, for the purposes of the Bail Act, is a person who has previously been charged with a terrorist offence. This is taken to mean a person who is currently, or ever has been, charged with a terrorist offence. For the sake of consistency with this meaning, two other provisions of the bill are also to be amended so that the person is taken to have been a terror suspect if the person is or has previously been charged with a terrorism offence. It will be a matter for the relevant bail or parole authority to determine what weight should be given to a charge that did not proceed to trial or resulted in an acquittal.

No. 4: the Victorian expert panel on terrorism and violent extremism prevention and response powers recommended that the presumption against parole apply to young offenders. This recommendation has merit and has been adopted by the government. Consistent with these proposed new provisions the government's amendments also propose to amend the Criminal Law (High Risk Offenders) Act and apply the provisions of that act to all young offenders; that is, those aged between 10 and 17, and not only those aged 16 and 17, as is currently the case in the bill. It would be incongruous if a young offender could be subject to the presumption against parole but, having chosen not to apply for parole but instead served their full head sentence, would not be liable to be subject to an application for an extended supervision order to the Supreme Court.

In debate, the Hon. Andrew McLachlan asked that a response be provided to the issues raised by the Law Society—he is fond of asking for reference to their concerns—from which the honourable member quoted. It appears to be the same submission provided by the Law Society to the government on the bill.

I can assure the house that the decision to introduce the bill has not been taken lightly, and that those original submissions that the Law Society made to the government during consultation, again as read out by the Hon. Andrew McLachlan, were given serious consideration. It is necessary, however, that the interests of the community be safe and protected from terrorist acts, which in these cases have to prevail over some of the individual interests of, it is hoped, the very few persons who will be affected by the provisions introduced in this bill.

I thank the honourable member for indicating the opposition's support for the bill and the bulk of the amendments filed in this house by the government. I take the opportunity to respectfully urge the opposition to review its position on amendments Nos 11 and 12, which we will get to shortly. The bill already extends the Criminal Law (High Risks Offenders) Act to young offenders of the age of 15 or 16 who are terror suspects, as we are adopting the amendments in the Victorian proposal that young offenders with no age limit be subject to the presumption against parole. As I said, we think it is inconsistent with the position that the Criminal Law (High Risk Offenders) Act also applies to young offenders without limitation, and that is the purpose of amendment No. 11.

Amendment No. 12 is simply the machinery provision that recognises the terminology used in the legislation in relation to young offenders is different from that of adult offenders. It is regrettable in these times that support for or links to terrorist activity is not limited to adult offenders. It would be inconsistent if a young offender who was a terror suspect could be subject to the presumption against parole, but having chosen to serve their full head sentence would not be able to be subject to the application of an extended supervision order to the Supreme Court. I thank all other members who have made comments on this bill.

The Hon. M.C. PARNELL: In relation to clause 1, the minister has addressed some of the issues raised by the Law Society. I guess at the heart of it is a debate that we have been having for the last several years and that is that we have principles of our legal system that are only lightly dispensed with. The two situations in which the parliament appears to be most likely to suspend them are in relation to child exploitation matters and terrorism matters, which has led to us inserting the words 'terrorism' or 'child protection' in just about every bill in order to encourage people to support them. It is an approach that I hope will end soon.

One thing the Law Society said that actually goes to the heart of this bill was in their submission 3½ months ago, back on 4 August. The final paragraph of their submission reads:

Furthermore, Regulations are yet to be drafted to prescribe the appropriate law enforcement and intelligence authorities as terrorism intelligence authorities. In the absence of such details, it is inappropriate to put such a Bill before Parliament.

Whilst I understand that the government rarely comes forward with regulations before the act itself is passed, can the minister tell us which organisations will be prescribed as terrorism intelligence authorities?

The Hon. K.J. MAHER: I thank the honourable member for his question. He is right, it is rare that the cart follows the horse in relation to legislation regulation. What I can advise, though, is that should this bill pass, there will be a meeting with SAPOL, who will have some input on what should be classified as those and also consult with interstate jurisdictions in the commonwealth on that.

Clause passed.

Clauses 2 to 4 passed.

Clause 5.

The Hon. K.J. MAHER: I move:

Amendment No 1 [Employment–2]—

Page 4, line 12 [clause 5, inserted section 3B(1)(b)(i)]—Before 'has' insert 'is or'

This brief amendment seeks to address the potential for any interpretation issues in respect of the proposed section 3B(1)(b)(i) of the Bail Act that may arise consequentially on the passive amendments Nos 5 and 9 in the government's first set of amendments. Would it be useful to go into more detail or are people relatively comfortable with the understanding of why we are doing this? If anyone has a specific question on what is a relatively straightforward amendment, I am happy to discuss it further.

Amendment carried.

The Hon. K.J. MAHER: I move:

Amendment No 1 [Employment–1]—

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.

This amendment is around the definition, and the definition of 'terror suspect' for the purposes of the Bail Act is proposed to be amended to also include a person, as I noted in comments on clause 1, who is, or has been previously, the subject of a control order under part 5.3 of the Commonwealth Criminal Code. Such a control order, I am advised, is generally a counterterrorism measure.

The Hon. M.C. PARNELL: My question of the minister is: what scope is there for a person who has been charged with an offence and the charges have been dropped? If a person has been charged with an offence and the charges have been dropped, can that person avoid being regarded forever as a terror suspect?

I will give an example. A person related to me, who may or may not be my wife, was charged with trespassing on the Franklin River in 1982, I think it was. Whilst trespassing might not necessarily be an act of terrorism, I imagine trespassing on a military base or some aspects of trespass might be regarded as terrorism. It strikes me that, along with many hundreds of other people, the charges were all dropped. The charges were ill-conceived and not well-founded in law and were dropped. There are hundreds of Australians who have been charged with offences that have never been proceeded with.

It seems, on my reading of this, that once you have been charged with something, regardless of whether the charges are proceeded with or whether you have been found guilty or innocent, or not even tried, you are nailed as a terror suspect forever. Is that the case?

The Hon. K.J. MAHER: I think the correct answer to that is yes, but have a look at the definition. Even then, it is the authority—whether it is the Parole Board or the person granting bail—who decides what weight to give to that. So, yes, that is the case; however—and I think it was quite fully agitated in the chamber last night—it is the commonwealth definition of terrorism that applies to this. The answer would be, yes, theoretically, but it would be subject to the commonwealth definition, and even then it is up to the authority, whether granting bail or parole, to decide what weight to give to it. So, yes, but subject to the commonwealth definition and then further subject to what weight ought to be given. If you are sitting on your kayak on the Franklin River with Bob Hawke right beside you in 1982—

The Hon. M.C. Parnell: It was Bob Brown, actually.

The Hon. K.J. MAHER: No, I think Bob Hawke made a few visits in the lead-up to the 1983 election before he was elected. I think there is discretion for the relevant weight to be given to it by the bail or parole authority.

Amendment carried; clause as amended passed.

Clauses 6 and 7 passed.

Clause 8.

The Hon. K.J. MAHER: I move:

Amendment No 2 [Employment–1]—

Page 5, line 9—Delete '(e)' and substitute '(f)'

Amendment No 3 [Employment–1]—

Page 5, line 11—Delete '(f)' and substitute '(g)'

Amendment No. 2 [Employment–1] and amendment No. 3 [Employment–1] are numbering changes, consequential to recent amendments to section 10A of the Bail Act by the Bail (Miscellaneous) Amendment Bill 2017.

Amendments carried; clause as amended passed.

Clause 9.

The Hon. K.J. MAHER: I move:

Amendment No 4 [Employment–1]—

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.

It deletes section 19B and substitutes a new section 19B. By way of explanation, a person who is a terror suspect and who is living in the community because they have been able to rebut the presumption against bail will be liable to having their bail revoked under this amendment if the Commissioner of Police certifies that he or she is satisfied that significant new information has come to light in relation to the person that should be considered by a bail authority, as I outlined in clause 1. This amendment is a sensible measure and is based on a recent recommendation made in the report of the Victorian Expert Panel on Terrorism and Violent Extremism Prevention and Response Powers.

The Hon. A.L. McLACHLAN: For the benefit of honourable members, can the minister indicate how this differs from the original section 19B?

The Hon. K.J. MAHER: To answer it very basically, I am advised that the new mechanism that was not there when the old 19B was drafted provides that if you have been granted bail because presumably the weight of the evidence says that the charge does not reach that threshold, and the arguments have been made and you have been granted bail, then what this does now that it did not do before is allow the Commissioner of Police to revoke that bail if new information comes to light.

The Hon. A.L. McLACHLAN: Are these nationally consistent? So these are not of our own initiative. Are these amendments in this clause being enacted in a coordinated fashion nationally?

The Hon. K.J. MAHER: There is not a uniform, national legislative instrument specifically on the provisions of the new 19B but, as I said, it has been adopted as a result of that Victorian expert panel's recommendations.

The Hon. A.L. McLACHLAN: Can I have some advice on what considerations the police commissioner must go through before he relies on these provisions? In other words, how does he determine what is significant and not significant, and is that on a balance of probabilities?

The Hon. K.J. MAHER: My advice is that there is not a set out checklist that the commissioner should follow, but the commissioner will weigh the totality of the evidence that is before him or her.

The Hon. A.L. McLACHLAN: I will rephrase the question. Is it an objective or a subjective test?

The Hon. K.J. MAHER: My advice is that it will be in relation to the evidence that is put before the Commissioner of Police and all of the years of knowledge in these sorts of areas that they bring.

The Hon. A.L. McLACHLAN: Does that mean it is subjective? Firstly, is it reviewable? I assume this is ultimately reviewable by a court if it is ever questioned in a bail application. Therefore, the court will either say, 'The police commissioner has to make a decision based on a series of objective factors to determine what is significant and what is not, and on the balance of probabilities, the evidence is significant,' or it could be purely subjective.

The Hon. K.J. MAHER: My advice is in two parts. As I said police, and particularly the Commissioner of Police, are very well versed in determining what is relevant to these sorts of questions, particularly the question of bail. In any event, such a decision would be judicially reviewable, so I am sure that knowing it is judicially reviewable would be taken into account—even though it would have been anyway, given the experience of our police commissioner.

The Hon. A.L. McLACHLAN: I am not going to pursue this issue to the ends of the earth, to the relief of the minister, but, for the purposes of the Hansard, I am not challenging the expertise of the police commissioner. The fact is that if it is a reviewable decision I suspect those objective factors are significant, and therefore the burden of proof is on the balance of probabilities and it does not need to be articulated.

I think I probably take some comfort that, given the minister's answer that it is reviewable, objective factors will be taken into account; however, I will not pursue it. I am just giving it for the benefit of the Hansard, and those who may wish to examine these provisions if they are ever challenged, that parliament has given at least some consideration to what is significant, because I can imagine that this would be something that is taken into account by legal counsel for those have been accused of terrorism. I will not pursue it any further.

Amendment carried; clause as amended passed.

Clause 10 passed.

Clause 11.

The Hon. K.J. MAHER: I move:

Amendment No 5 [Employment–1]—

Page 6, line 24 [clause 11(3), inserted subsection (4)(a)]—After 'is' insert ', or has previously been,'

I think we have agitated this in a previous amendment. This inserts not just 'is' but also 'or has previously been' into the bill.

Amendment carried.

The Hon. K.J. MAHER: I move:

Amendment No 6 [Employment–1]—

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.

Again, this is the same as amendment No. 1 in the government's first set, except that it applies to the Correctional Services Act, and inserts 'is, or has previously been the subject of a control order under part 5.3 of the Commonwealth Criminal Code'.

Amendment carried; clause as amended passed.

Clauses 12 and 13 passed.

Clause 14.

The Hon. K.J. MAHER: I move:

Amendment No 7 [Employment–1]—

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)

This amendment operates in the same way as amendment No. 4 except that it applies where a terror suspect has been able to rebut the presumption against parole.

Amendment carried.

The Hon. K.J. MAHER: I move:

Amendment No 8 [Employment–1]—

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.

I should have moved these as a set. I repeat what I said that this amendment operates in the same way as amendment No. 4 except that it applies where a terror suspect has been able to rebut the presumption against parole.

Amendment carried; clause as amended passed.

Clauses 15 to 19 passed.

Clause 20.

The Hon. K.J. MAHER: I move:

Amendment No 9 [Employment–1]—

Page 10, line 36 [clause 20, inserted section 5A(1)(a)]—After 'is' insert ', or has previously been,'

This is similar to an amendment we talked about five minutes ago. It inserts after 'is' the words 'or has previously been', except that here it applies to the Criminal Law (High Risk Offenders) Act.

Amendment carried.

The Hon. K.J. MAHER: I move:

Amendment No 10 [Employment–1]—

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.

This is the same as amendment No. 1 in the government's first set except that it applies to the Criminal Law (High Risk Offenders) Act. It inserts 'is, or has previously been, the subject of a control order under Part 5.3 of the Commonwealth Criminal Code.'

Amendment carried; clause as amended passed.

Clause 21.

The Hon. K.J. MAHER: I move:

Amendment No 11 [Employment–1]—

Page 11, lines 12 to 14 [clause 21(2), inserted subsection (2)]—Delete 'prescribed by the regulations) in relation to a youth who is of or above the age of 16 years and' and substitute:

set out in section 6A or prescribed by regulations made in accordance with that section) in relation to a youth who

This is for the sake of consistency, with new provisions proposed to be inserted in the Young Offenders Act 1993 by amendment No. 13, which will apply to young offenders aged 10 to 17. This amendment proposes to amend the Criminal Law (High Risk Offenders) Act to apply the provisions of that act to all young offenders aged 10 to 17 and not just those aged 16 to 17, as is currently in the bill and as I outlined at clause 1.

The Hon. A.L. McLACHLAN: I will articulate the Liberal Party position. We still intend to oppose amendments Nos 11 and 12. The Liberal Party has reviewed this bill and amendments in a relatively short time frame. As the minister has acknowledged, we have accepted virtually all the government's amendments. It is the view of the Liberal Party that this is probably a bridge too far, given its severity in relation to youths between 10 and 17. We are very uncomfortable with it, particularly because the amendments are not on recommendation of the COAG.

The recommendations of the COAG are what the Liberal Party has hung its hat on. We accept the fact that the government has to negotiate with other states regarding terrorism and the fact that it is borderless. It is also not on recommendation of the task force or the expert panel. The Liberal Party takes the view that, given the severity proposed in particular amendments regarding youths, the matter should be first discussed at COAG prior to implementation. We do not rule it out going forward in a new parliament, but at this point and at this time and given its severity, we do not feel that we could support these two amendments.

The Hon. M.C. PARNELL: The position of the Greens is to support the Liberal Party in their opposition to amendments Nos 11 and 12. We agree that having these provisions apply to 10 year olds is a bridge too far. We also note that the government is on somewhat of a frolic of its own and that this was not part of the COAG recommendations.

The Hon. K.L. VINCENT: To assist with the progression, having considered this and also having listened to the debate, I tend to agree with the Liberal proposition that, while we do want to see action on terrorism, we certainly do not want to take a bridge too far, as has been said, and see minors who may not have the necessary intent or awareness of consequences unnecessarily caught up in this.

The Hon. D.G.E. HOOD: The Australian Conservatives will be supporting the amendment from the minister.

Amendment negatived; clause passed.

The Hon. K.J. MAHER: I will not be moving amendment No. 12. It is consequential on the one we just lost.

Clauses 22 to 27 passed.

New clauses 28 to 33.

The Hon. K.J. MAHER: I move:

Amendment No 13 [Employment–1]—

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.

By way of explanation, the Victorian Expert Panel on Terrorism and Violent Extremism Prevention and Response Powers also recommended that the presumption against parole apply to young offenders. This recommendation is merited and has been adopted by the government. This amendment applies this presumption to a young offender in a detention youth training centre. A number of amendments have been proposed to the Young Offenders Act to give effect to this recommendation, which is why it is a quite long amendment. They are modelled on the amendments regarding parole in the Correctional Services Act but with variations taking into account different terminology and concepts applying to youth under the Young Offenders Act.

New clauses inserted.

Long title.

The Hon. K.J. MAHER: I move:

Amendment No 14 [Employment–1]—Long title—Delete 'and the Police Act 1998' and substitute:

the Police Act 1998; and the Young Offenders Act 1993

This is a consequential amendment on the passing of amendment No.13.

Amendment carried; long title as amended passed.

Bill reported with amendment.

Third Reading

The Hon. K.J. MAHER (Minister for Employment, Minister for Aboriginal Affairs and Reconciliation, Minister for Manufacturing and Innovation, Minister for Automotive Transformation, Minister for Science and Information Economy) (12:17): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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