Commonwealth: Anti-Terrorism Act (No. 2) 2005 (Cth)

Anti‑Terrorism Act (No. 2) 2005 Act No. 144 of 2005 as amended This compilation was prepared on 18 December 2006 [This Act was amended by Act No. 170 of 2006] Amendments from Act No. 170 of 2006 [Schedule 1 (items 2–11) amended subsection 2(1) (items 8, 10, 11, and 13–19) [Schedule 1 (items 2–11) commenced immediately after 14 December 2005] Prepared by the Office of Legislative Drafting and Publishing, Attorney‑General's Department, Canberra Contents 1 Short title 2 Commencement 3 Schedule(s) 4 Review of anti‑terrorism laws Schedule 1—Definition of terrorist organisation etc. Crimes (Foreign Incursions and Recruitment) Act 1978 Criminal Code Act 1995 Customs Act 1901 Schedule 2—Technical amendments Criminal Code Act 1995 Schedule 3—Financing terrorism Criminal Code Act 1995 Financial Transaction Reports Act 1988 Schedule 4—Control orders and preventative detention orders Part 1—Control orders and preventative detention orders Criminal Code Act 1995 Part 2—Consequential amendments Administrative Decisions (Judicial Review) Act 1977 Schedule 5—Powers to stop, question and search persons in relation to terrorist acts Crimes Act 1914 Schedule 6—Power to obtain information and documents Crimes Act 1914 Schedule 7—Sedition Crimes Act 1914 Criminal Code Act 1995 Migration Act 1958 Surveillance Devices Act 2004 Schedule 8—Optical surveillance devices at airports and on board aircraft Aviation Transport Security Act 2004 Schedule 9—Financial transaction reporting Financial Transaction Reports Act 1988 Proceeds of Crime Act 2002 Surveillance Devices Act 2004 Schedule 10—ASIO powers etc. Australian Security Intelligence Organisation Act 1979 Customs Act 1901 Customs Administration Act 1985 Migration Act 1958 An Act to amend the law relating to terrorist acts, and for other purposes [Assented to 14 December 2005] The Parliament of Australia enacts: 1 Short title This Act may be cited as the Anti‑Terrorism Act (No. 2) 2005. 2 Commencement (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms. Commencement information Column 1 Column 2 Column 3 Provision(s) Commencement Date/Details 1. Sections 1 to 4 and anything in this Act not elsewhere covered by this table The day on which this Act receives the Royal Assent. 14 December 2005 2. Schedule 1, items 1 to 21 The day after this Act receives the Royal Assent. 15 December 2005 3. Schedule 1, item 22 A single day to be fixed by Proclamation. 16 February 2006 However, if any of the provision(s) do not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period. (see F2006L00345) 4. Schedule 1, item 23 The day after this Act receives the Royal Assent. 15 December 2005 5. Schedule 2 The day on which this Act receives the Royal Assent. 14 December 2005 6. Schedules 3 to 6 The day after this Act receives the Royal Assent. 15 December 2005 7. Schedules 7 and 8 The 28th day after the day on which this Act receives the Royal Assent. 11 January 2006 8. Schedule 9, items 1 and 2 14 December 2006. Do not commence However, if section 3 of the Anti‑Money Laundering and Counter‑Terrorism Financing Act 2006 commences before 14 December 2006, the provision(s) do not commence at all. 9. Schedule 9, items 3 and 4 The day on which this Act receives the Royal Assent. 14 December 2005 10. Schedule 9, item 5 14 December 2006. Does not commence However, if section 3 of the Anti‑Money Laundering and Counter‑Terrorism Financing Act 2006 commences before 14 December 2006, the provision(s) do not commence at all. 11. Schedule 9, item 6 14 December 2006. Does not commence However, if section 3 of the Anti‑Money Laundering and Counter‑Terrorism Financing Act 2006 commences before 14 December 2006, the provision(s) do not commence at all. 12. Schedule 9, item 7 The day on which this Act receives the Royal Assent. 14 December 2005 13. Schedule 9, items 8 and 9 14 December 2006. Do not commence However, if section 3 of the Anti‑Money Laundering and Counter‑Terrorism Financing Act 2006 commences before 14 December 2006, the provision(s) do not commence at all. 14. Schedule 9, item 10 14 December 2006. Does not commence However, if section 3 of the Anti‑Money Laundering and Counter‑Terrorism Financing Act 2006 commences before 14 December 2006, the provision(s) do not commence at all. 15. Schedule 9, item 11 14 December 2006. Does not commence However, if section 3 of the Anti‑Money Laundering and Counter‑Terrorism Financing Act 2006 commences before 14 December 2006, the provision(s) do not commence at all. 16. Schedule 9, items 12 and 13 14 December 2006. Do not commence However, if section 3 of the Anti‑Money Laundering and Counter‑Terrorism Financing Act 2006 commences before 14 December 2006, the provision(s) do not commence at all. 17. Schedule 9, items 14 and 15 14 December 2006. Do not commence However, if section 3 of the Anti‑Money Laundering and Counter‑Terrorism Financing Act 2006 commences before 14 December 2006, the provision(s) do not commence at all. 18. Schedule 9, items 16 and 17 14 December 2006. Do not commence However, if section 3 of the Anti‑Money Laundering and Counter‑Terrorism Financing Act 2006 commences before 14 December 2006, the provision(s) do not commence at all. 19. Schedule 9, items 18 to 24 14 December 2006. Do not commence However, if section 3 of the Anti‑Money Laundering and Counter‑Terrorism Financing Act 2006 commences before 14 December 2006, the provision(s) do not commence at all. 20. Schedule 10, items 1 to 25 The day on which this Act receives the Royal Assent. 14 December 2005 21. Schedule 10, items 26 to 28 The day after this Act receives the Royal Assent. 15 December 2005 22. Schedule 10, items 29 to 32 The day on which this Act receives the Royal Assent. 14 December 2005 Note: This table relates only to the provisions of this Act as originally passed by the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent. (2) Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act. 3 Schedule(s) Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms. 4 Review of anti‑terrorism laws (1) The Council of Australian Governments agreed on 27 September 2005 that the Council would, after 5 years, review the operation of: (a) the amendments made by Schedules 1, 3, 4 and 5; and (b) certain State laws. (2) If a copy of the report in relation to the review is given to the Attorney‑General, the Attorney‑General must cause a copy of the report to be laid before each House of Parliament within 15 sitting days after the Attorney‑General receives the copy of the report. Schedule 1—Definition of terrorist organisation etc. Crimes (Foreign Incursions and Recruitment) Act 1978 1 Paragraph 6(7)(b) Omit ", (c), (d) or (e)". Criminal Code Act 1995 2 Subsection 102.1(1) of the Criminal Code Insert: advocate has the meaning given by subsection (1A). 3 Subsection 102.1(1) of the Criminal Code (definition of Hamas organisation) Repeal the definition. 4 Subsection 102.1(1) of the Criminal Code (definition of Hizballah organisation) Repeal the definition. 5 Subsection 102.1(1) of the Criminal Code (definition of Lashkar‑e‑Tayyiba organisation) Repeal the definition. 6 Subsection 102.1(1) of the Criminal Code (paragraph (a) of the definition of terrorist organisation) Omit "the terrorist act", substitute "a terrorist act". 7 Subsection 102.1(1) of the Criminal Code (paragraph (b) of the definition of terrorist organisation) Omit "(4)); or", substitute "(4)).". 8 Subsection 102.1(1) of the Criminal Code (paragraphs (c), (d) and (e) of the definition of terrorist organisation) Repeal the paragraphs. 9 After subsection 102.1(1) of the Criminal Code Insert: Definition of advocates (1A) In this Division, an organisation advocates the doing of a terrorist act if: (a) the organisation directly or indirectly counsels or urges the doing of a terrorist act; or (b) the organisation directly or indirectly provides instruction on the doing of a terrorist act; or (c) the organisation directly praises the doing of a terrorist act in circumstances where there is a risk that such praise might have the effect of leading a person (regardless of his or her age or any mental impairment (within the meaning of section 7.3) that the person might suffer) to engage in a terrorist act. 10 Subsection 102.1(2) of the Criminal Code Repeal the subsection, substitute: Terrorist organisation regulations (2) Before the Governor‑General makes a regulation specifying an organisation for the purposes of paragraph (b) of the definition of terrorist organisation in this section, the Minister must be satisfied on reasonable grounds that the organisation: (a) is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act (whether or not a terrorist act has occurred or will occur); or (b) advocates the doing of a terrorist act (whether or not a terrorist act has occurred or will occur). 11 Paragraph 102.1(4)(b) of the Criminal Code Repeal the paragraph, substitute: (b) the Minister ceases to be satisfied of either of the following (as the case requires): (i) that the organisation is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act (whether or not a terrorist act has occurred or will occur); (ii) that the organisation advocates the doing of a terrorist act (whether or not a terrorist act has occurred or will occur); 12 Subsection 102.1(6) of the Criminal Code Omit "section 50 of the Acts Interpretation Act 1901", substitute "section 15 of the Legislative Instruments Act 2003". 13 Subsections 102.1(7) to (16) of the Criminal Code Repeal the subsections. 14 Paragraph 102.1(17)(a) of the Criminal Code Omit ", (c), (d) or (e)". 15 Paragraph 102.1(17)(b) of the Criminal Code Omit ", (9), (10A) or (10C), as the case requires,". 16 Paragraph 102.1(17)(c) of the Criminal Code Repeal the paragraph, substitute: (c) the de‑listing application is made on the grounds that there is no basis for the Minister to be satisfied that the listed organisation: (i) is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act (whether or not a terrorist act has occurred or will occur); or (ii) advocates the doing of a terrorist act (whether or not a terrorist act has occurred or will occur); as the case requires; 17 Subsection 102.1(18) of the Criminal Code Omit "subsections (4), (9), (10A) and (10C)", substitute "subsection (4)". 18 Paragraph 102.5(2)(b) of the Criminal Code Omit ", (c), (d) or (e)". 19 Paragraph 102.8(1)(b) of the Criminal Code Omit ", (c), (d) or (e)". 20 Paragraph 102.8(2)(g) of the Criminal Code Omit ", (c), (d) or (e)". 21 At the end of Division 106 of the Criminal Code Add: 106.2 Saving—regulations made for the purposes of paragraph (a) of the definition of terrorist organisation (1) If: (a) regulations were made before commencement for the purposes of paragraph (a) of the definition of terrorist organisation in subsection 102.1(1), as in force before commencement; and (b) the regulations were in force immediately before commencement; the regulations continue to have effect, after commencement, as if they had been made for the purposes of that paragraph, as in force after commencement. (2) In this section, commencement means the commencement of this section. Note: The heading to section 106.1 of the Criminal Code is replaced by the heading "Saving—regulations originally made for the purposes of paragraph (c) of the definition of terrorist organisation". 22 At the end of Division 106 of the Criminal Code Add: 106.3 Application provision The amendments to this Code made by Schedule 1 to the Anti‑Terrorism Act 2005 apply to offences committed: (a) before the commencement of this section (but not before the commencement of the particular section of the Code being amended); and (b) after the commencement of this section. Customs Act 1901 23 Subparagraph 203DA(1)(c)(i) Omit "the terrorist act", substitute "a terrorist act". Schedule 2—Technical amendments Criminal Code Act 1995 1 Division 104 of Part 5.4 of the Criminal Code (heading) Repeal the heading, substitute: Division 115—Harming Australians 2 Sections in Part 5.4 of the Criminal Code The sections in Part 5.4 of the Criminal Code are renumbered in accordance with the following table: Section renumbering in Part 5.4 of the Criminal Code Item This section... is renumbered as... 1 104.1 115.1 2 104.2 115.2 3 104.3 115.3 4 104.4 115.4 5 104.5 115.5 6 104.6 115.6 7 104.7 115.7 8 104.8 115.8 9 104.9 115.9 Schedule 3—Financing terrorism Criminal Code Act 1995 1 Paragraphs 102.6(1)(a) and (2)(a) of the Criminal Code Repeal the paragraphs, substitute: (a) the person intentionally: (i) receives funds from, or makes funds available to, an organisation (whether directly or indirectly); or (ii) collects funds for, or on behalf of, an organisation (whether directly or indirectly); and Note: The heading to section 102.6 of the Criminal Code is altered by omitting "to or from" and substituting "to, from or for". 2 Subsection 103.1(3) of the Criminal Code Repeal the subsection. 3 At the end of Division 103 of the Criminal Code Add: 103.2 Financing a terrorist (1) A person commits an offence if: (a) the person intentionally: (i) makes funds available to another person (whether directly or indirectly); or (ii) collects funds for, or on behalf of, another person (whether directly or indirectly); and (b) the first‑mentioned person is reckless as to whether the other person will use the funds to facilitate or engage in a terrorist act. Penalty: Imprisonment for life. (2) A person commits an offence under subsection (1) even if: (a) a terrorist act does not occur; or (b) the funds will not be used to facilitate or engage in a specific terrorist act; or (c) the funds will be used to facilitate or engage in more than one terrorist act. 103.3 Extended geographical jurisdiction for offences Section 15.4 (extended geographical jurisdiction—category D) applies to an offence against this Division. Financial Transaction Reports Act 1988 4 Subsection 16(6) (paragraph (a) of the definition of financing of terrorism offence) Repeal the paragraph, substitute: (a) section 102.6 or Division 103 of the Criminal Code; or Schedule 4—Control orders and preventative detention orders Part 1—Control orders and preventative detention orders Criminal Code Act 1995 1 Subsection 100.1(1) of the Criminal Code Insert: 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). 2 Subsection 100.1(1) of the Criminal Code Insert: confirmed control order means an order made under section 104.16. 3 Subsection 100.1(1) of the Criminal Code Insert: continued preventative detention order means an order made under section 105.12. 4 Subsection 100.1(1) of the Criminal Code Insert: control order means an interim control order or a confirmed control order. 5 Subsection 100.1(1) of the Criminal Code Insert: corresponding State preventative detention law means a law of a State or Territory that is, or particular provisions of a law of a State or Territory that are, declared by the regulations to correspond to Division 105 of this Act. 6 Subsection 100.1(1) of the Criminal Code Insert: frisk search means: (a) a search of a person conducted by quickly running the hands over the person's outer garments; and (b) an examination of anything worn or carried by the person that is conveniently and voluntarily removed by the person. 7 Subsection 100.1(1) of the Criminal Code Insert: identification material, in relation to a person, means prints of the person's hands, fingers, feet or toes, recordings of the person's voice, samples of the person's handwriting or photographs (including video recordings) of the person, but does not include tape recordings made for the purposes of section 23U or 23V of the Crimes Act 1914. 8 Subsection 100.1(1) of the Criminal Code Insert: initial preventative detention order means an order made under section 105.8. 9 Subsection 100.1(1) of the Criminal Code Insert: interim control order means an order made under section 104.4, 104.7 or 104.9. 10 Subsection 100.1(1) of the Criminal Code Insert: issuing authority: (a) for initial preventative detention orders—means a senior AFP member; and (b) for continued preventative detention orders—means a person appointed under section 105.2. 11 Subsection 100.1(1) of the Criminal Code Insert: issuing court means: (a) the Federal Court of Australia; or (b) the Family Court of Australia; or (c) the Federal Magistrates Court. 12 Subsection 100.1(1) of the Criminal Code Insert: Judge means a Judge of a court created by the Parliament. 13 Subsection 100.1(1) of the Criminal Code Insert: lawyer means a person enrolled as a legal practitioner of a federal court or the Supreme Court of a State or Territory. 14 Subsection 100.1(1) of the Criminal Code Insert: listed terrorist organisation means an organisation that is specified by the regulations for the purposes of paragraph (b) of the definition of terrorist organisation in section 102.1. 15 Subsection 100.1(1) of the Criminal Code Insert: ordinary search means a search of a person or of articles in the possession of a person that may include: (a) requiring the person to remove his or her overcoat, coat or jacket and any gloves, shoes or hat; and (b) an examination of those items. 16 Subsection 100.1(1) of the Criminal Code Insert: police officer means: (a) an AFP member; or (b) a member (however described) of a police force of a State or Territory. 17 Subsection 100.1(1) of the Criminal Code Insert: prescribed authority has the same meaning as in Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979. 18 Subsection 100.1(1) of the Criminal Code Insert: preventative detention order means an order under section 105.8 or 105.12. 19 Subsection 100.1(1) of the Criminal Code Insert: prohibited contact order means an order made under section 105.15 or 105.16. 20 Subsection 100.1(1) of the Criminal Code Insert: seizable item means anything that: (a) would present a danger to a person; or (b) could be used to assist a person to escape from lawful custody; or (c) could be used to contact another person or to operate a device remotely. 21 Subsection 100.1(1) of the Criminal Code Insert: 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. 22 Subsection 100.1(1) of the Criminal Code Insert: superior court means: (a) the High Court; or (b) the Federal Court of Australia; or (c) the Family Court of Australia or of a State; or (d) the Supreme Court of a State or Territory; or (e) the District Court (or equivalent) of a State or Territory. 23 Subsection 100.1(1) of the Criminal Code Insert: tracking 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. 24 After Division 103 of the Criminal Code Insert: Division 104—Control orders Subdivision A—Object of this Division 104.1 Object of this Division The object of this Division is to allow obligations, prohibitions and restrictions to be imposed on a person by a control order for the purpose of protecting the public from a terrorist act. Subdivision B—Making an interim control order 104.2 Attorney‑General's consent to request an interim control order (1) A senior AFP member must not request an interim control order in relation to a person without the Attorney‑General's written consent. Note: However, in urgent circumstances, a senior AFP member may request an interim control order without first obtaining the Attorney‑General's consent (see Subdivision C). (2) A senior AFP member may only seek the Attorney‑General's written consent to request an interim control order in relation to a person if the member: (a) considers on reasonable grounds that the order in the terms to be requested would substantially assist in preventing a terrorist act; or (b) suspects on reasonable grounds that the person has provided training to, or received training from, a listed terrorist organisation. (3) In seeking the Attorney‑General's consent, the member must give the Attorney‑General a draft request that includes: (a) a draft of the interim control order to be requested; and (b) the following: (i) a statement of the facts relating to why the order should be made; (ii) if the member is aware of any facts relating to why the order should not be made—a statement of those facts; and (c) the following: (i) an explanation as to why each of the obligations, prohibitions and restrictions should be imposed on the person; (ii) if the member is aware of any facts relating to why any of those obligations, prohibitions or restrictions should not be imposed on the person—a statement of those facts; and (d) the following: (i) the outcomes and particulars of all previous requests for interim control orders (including the outcomes of the hearings to confirm the orders) in relation to the person; (ii) the outcomes and particulars of all previous applications for variations of control orders made in relation to the person; (iii) the outcomes of all previous applications for revocations of control orders made in relation to the person; (iv) the outcomes and particulars of all previous applications for preventative detention orders in relation to the person; (v) information (if any) that the member has about any periods for which the person has been detained under an order made under a corresponding State preventative detention law; and (e) information (if any) that the member has about the person's age; and (f) a summary of the grounds on which the order should be made. Note 1: An interim control order cannot be requested in relation to a person who is under 16 years of age (see section 104.28). Note 2: The member might commit an offence if the draft request is false or misleading (see sections 137.1 and 137.2). (3A) To avoid doubt, paragraph (3)(f) does not require any information to be included in the summary if disclosure of that information is likely to prejudice national security (within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004). (4) The Attorney‑General's consent may be made subject to changes being made to the draft request (including the draft of the interim control order to be requested). (5) To avoid doubt, a senior AFP member may seek the Attorney‑General's consent to request an interim control order in relation to a person, even if such a request has previously been made in relation to the person. 104.3 Requesting the court to make an interim control order If the Attorney‑General consents to the request under section 104.2, the senior AFP member may request the interim control order by giving an issuing court: (a) a request: (i) that is the same as the draft request, except for the changes (if any) required by the Attorney‑General; and (ii) the information in which is sworn or affirmed by the member; and (b) a copy of the Attorney‑General's consent. Note: The member might commit an offence if the request is false or misleading (see sections 137.1 and 137.2). 104.4 Making an interim control order (1) The issuing court may make an order under this section in relation to the person, but only if: (a) the senior AFP member has requested it in accordance with section 104.3; and (b) the court has received and considered such further information (if any) as the court requires; and (c) the court is satisfied on the balance of probabilities: (i) that making the order would substantially assist in preventing a terrorist act; or (ii) that the person has provided training to, or received training from, a listed terrorist organisation; and (d) the court is satisfied on the balance of probabilities that each of the obligations, prohibitions and restrictions to be imposed on the person by the order is reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the public from a terrorist act. (2) In determining whether each of the obligations, prohibitions and restrictions to be imposed on the person by the order is reasonably necessary, and reasonably appropriate and adapted, the court must take into account the impact of the obligation, prohibition or restriction on the person's circumstances (including the person's financial and personal circumstances). (3) The court need not include in the order an obligation, prohibition or restriction that was sought by the senior AFP member if the court is not satisfied as mentioned in paragraph (1)(d) in respect of that obligation, prohibition or restriction. 104.5 Terms of an interim control order (1) If the issuing court makes the interim control order, the order must: (a) state that the court is satisfied of the matters mentioned in paragraphs 104.4(1)(c) and (d); and (b) specify the name of the person to whom the order relates; and (c) specify all of the obligations, prohibitions and restrictions mentioned in subsection (3) that are to be imposed on the person by the order; and (d) state that the order does not begin to be in force until it is served personally on the person; and (e) specify a day on which the person may attend the court for the court to: (i) confirm (with or without variation) the interim control order; or (ii) declare the interim control order to be void; or (iii) revoke the interim control order; and (f) specify the period during which the confirmed control order is to be in force, which must not end more than 12 months after the day on which the interim control order is made; and (g) state that the person's lawyer may attend a specified place in order to obtain a copy of the interim control order; and (h) set out a summary of the grounds on which the order is made. Note 1: An interim control order made in relation to a person must be served on the person at least 48 hours before the day specified as mentioned in paragraph (1)(e) (see section 104.12). Note 2: A confirmed control order that is made in relation to a 16‑ to 18‑year‑old must not end more than 3 months after the day on which the interim control order is made (see section 104.28). (1A) The day specified for the purposes of paragraph (1)(e) must be as soon as practicable, but at least 72 hours, after the order is made. (2) Paragraph (1)(f) does not prevent the making of successive control orders in relation to the same person. (2A) To avoid doubt, paragraph (1)(h) does not require any information to be included in the summary if disclosure of that information is likely to prejudice national security (within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004). Obligations, prohibitions and restrictions (3) The obligations, prohibitions and restrictions that the court may impose on the person by the order are the following: (a) a prohibition or restriction on the person being at specified areas or places; (b) a prohibition or restriction on the person leaving Australia; (c) a requirement that the person remain at specified premises between specified times each day, or on specified days; (d) a requirement that the person wear a tracking device; (e) a prohibition or restriction on the person communicating or associating with specified individuals; (f) a prohibition or restriction on the person accessing or using specified forms of telecommunication or other technology (including the Internet); (g) a prohibition or restriction on the person possessing or using specified articles or substances; (h) a prohibition or restriction on the person carrying out specified activities (including in respect of his or her work or occupation); (i) a requirement that the person report to specified persons at specified times and places; (j) a requirement that the person allow himself or herself to be photographed; (k) a requirement that the person allow impressions of his or her fingerprints to be taken; (l) a requirement that the person participate in specified counselling or education. Note: Restrictions apply to the use of photographs or impressions of fingerprints taken as mentioned in paragraphs (3)(j) and (k) (see section 104.22). Communicating and associating (4) Subsection 102.8(4) applies to paragraph (3)(e) and the person's communication or association in the same way as that subsection applies to section 102.8 and a person's association. (5) This section does not affect the person's right to contact, communicate or associate with the person's lawyer unless the person's lawyer is a specified individual as mentioned in paragraph (3)(e). If the person's lawyer is so specified, the person may contact, communicate or associate with any other lawyer who is not so specified. Counselling and education (6) A person is required to participate in specified counselling or education as mentioned in paragraph (3)(l) only if the person agrees, at the time of the counselling or education, to participate in the counselling or education. Subdivision C—Making an urgent interim control order 104.6 Requesting an urgent interim control order by electronic means (1) A senior AFP member may request, by telephone, fax, email or other electronic means, an issuing court to make an interim control order in relation to a person if: (a) the member considers it necessary to use such means because of urgent circumstances; and (b) the member either considers or suspects the matters mentioned in subsection 104.2(2) on reasonable grounds. (2) The Attorney‑General's consent under section 104.2 is not required before the request is made. Note: However, if the Attorney‑General's consent is not obtained before the member makes the request, the Attorney‑General's consent must be obtained within 4 hours of the member making the request (see section 104.10). (3) The issuing court may require communication by voice to the extent that is practicable in the circumstances. (4) The request must include the following: (a) all that is required under subsection 104.2(3) in respect of an ordinary request for an interim control order (including, if the Attorney‑General's consent has been obtained before making the request, the changes (if any) required by the Attorney‑General); (b) an explanation as to why the making of the interim control order is urgent; (c) if the Attorney‑General's consent has been obtained before making the request—a copy of the Attorney‑General's consent. Note: The member might commit an offence if the request is false or misleading (see sections 137.1 and 137.2). (5) The information and the explanation included in the request must be sworn or affirmed by the member, but do not have to be sworn or affirmed before the request is made. Note: Subsection 104.7(5) requires the information and the explanation to be sworn or affirmed within 24 hours. 104.7 Making an urgent interim control order by electronic means (1) Before making an order in response to a request under section 104.6, the issuing court must: (a) consider the information and the explanation included in the request; and (b) receive and consider such further information (if any) as the court requires. (2) If the issuing court is satisfied that an order should be made urgently, the court may complete the same form of order that would be made under sections 104.4 and 104.5. Procedure after urgent interim control order is made (3) If the issuing court makes the order, the court must inform the senior AFP member, by telephone, fax, email or other electronic means, of: (a) the terms of the order; and (b) the day on which, and the time at which, it was completed. (4) The member must then complete a form of order in terms substantially corresponding to those given by the issuing court, stating on the form: (a) the name of the court; and (b) the day on which, and the time at which, the order was completed. (5) Within 24 hours of being informed under subsection (3), the member must give or transmit the following to the issuing court: (a) the form of order completed by the member; (b) if the information and the explanation included in the request were not already sworn or affirmed—that information and explanation duly sworn or affirmed; (c) if the Attorney‑General's consent was not obtained before making the request—a copy of the Attorney‑General's consent. (6) The issuing court must attach to the documents provided under subsection (5) the form of order the court has completed. 104.8 Requesting an urgent interim control order in person (1) A senior AFP member may request, in person, an issuing court to make an interim control order in relation to a person without first obtaining the Attorney‑General's consent under section 104.2 if: (a) the member considers it necessary to request the order without the consent because of urgent circumstances; and (b) the member either considers or suspects the matters mentioned in subsection 104.2(2) on reasonable grounds. Note: The Attorney‑General's consent must be obtained within 4 hours of making the request (see section 104.10). (2) The request must include the following: (a) all that is required under subsection 104.2(3) in respect of an ordinary request for an interim control order (including information that is sworn or affirmed by the member); (b) an explanation that is sworn or affirmed as to why the making of the interim control order without first obtaining the Attorney‑General's consent is urgent. Note: The member might commit an offence if the request is false or misleading (see sections 137.1 and 137.2). 104.9 Making an urgent interim control order in person (1) Before making an order in response to a request under section 104.8, the issuing court must: (a) consider the information and the explanation included in the request; and (b) receive and consider such further information (if any) as the court requires. (2) If the issuing court is satisfied that an order should be made urgently, the court may make the same order that would be made under sections 104.4 and 104.5. (3) Within 24 hours of the order being made under subsection (2), the member must: (a) give or transmit a copy of the order to the issuing court; and (b) either: (i) give or transmit a copy of the Attorney‑General's consent to request the order to the court; or (ii) notify the court in writing that the Attorney‑General's consent was not obtained. Note: Section 104.10 deals with the Attorney‑General's consent. 104.10 Obtaining the Attorney‑General's consent within 4 hours (1) If the Attorney‑General's consent to request an interim control order was not first sought before making a request under section 104.6 or 104.8, the senior AFP member who made the request must, in accordance with subsection 104.2(3), seek that consent within 4 hours of making the request. (2) In any case, if the Attorney‑General: (a) refuses his or her consent to request the order; or (b) has not given his or her consent to request the order; within 4 hours of the request being made, the order immediately ceases to be in force. Note: However, the senior AFP member can vary the request and seek the Attorney‑General's consent to request a new interim control order in relation to the person (see subsection 104.2(5)). (3) If the order ceases to be in force under subsection (2), the senior AFP member must, as soon as practicable: (a) notify the court that the order has ceased to be in force; and (b) if the order has been served on the person in relation to whom it was made: (i) annotate the order to indicate that it has ceased to be in force; and (ii) cause the annotated order to be served personally on the person. 104.11 Court to assume that exercise of power not authorised by urgent interim control order If: (a) it is material, in any proceedings, for a court to be satisfied that an interim control order was duly made under section 104.7; and (b) the form of order completed by the relevant issuing court is not produced in evidence; the first‑mentioned court is to assume, unless the contrary is proved, that the order was not duly made. Subdivision D—Confirming an interim control order 104.12 Service, explanation and notification of an interim control order Service and explanation of an interim control order (1) As soon as practicable after an interim control order is made in relation to a person, and at least 48 hours before the day specified as mentioned in paragraph 104.5(1)(e), an AFP member: (a) must serve the order personally on the person; and (b) must inform the person of the following: (i) the effect of the order; (ii) the period for which the order (if confirmed) is in force; (iii) the effect of sections 104.12A, 104.13, 104.14, 104.18 and 104.27 (and section 104.22 if appropriate); and (c) must ensure that the person understands the information provided under paragraph (b) (taking into account the person's age, language skills, mental capacity and any other relevant factor). (3) Paragraphs (1)(b) and (c) do not apply if the actions of the person in relation to whom the interim control order has been made make it impracticable for the AFP member to comply with those paragraphs. (4) A failure to comply with paragraph (1)(c) does not make the control order ineffective to any extent. Queensland public interest monitor to be given copy of interim control order (5) If: (a) the person in relation to whom the interim control order is made is a resident of Queensland; or (b) the issuing court that made the interim control order did so in Queensland; an AFP member must give to the Queensland public interest monitor a copy of the order. 104.12A Election to confirm control order (1) At least 48 hours before the day specified in an interim control order as mentioned in paragraph 104.5(1)(e), the senior AFP member who requested the order must: (a) elect whether to confirm the order on the specified day; and (b) give a written notification to the issuing court that made the order of the member's election. (2) If the senior AFP member elects to confirm the order, an AFP member must: (a) serve personally on the person in relation to whom the order is made: (i) a copy of the notification; and (ii) a copy of the documents mentioned in paragraphs 104.2(3)(b) and (c); and (iii) any other details required to enable the person to understand and respond to the substance of the facts, matters and circumstances which will form the basis of the confirmation of the order; and (b) if the person is a resident of Queensland, or the court made the order in Queensland—give the Queensland public interest monitor a copy of the documents mentioned in paragraph (a). (3) To avoid doubt, subsection (2) does not require any information to be served or given if disclosure of that information is likely: (a) to prejudice national security (within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004); or (b) to be protected by public interest immunity; or (c) to put at risk ongoing operations by law enforcement agencies or intelligence agencies; or (d) to put at risk the safety of the community, law enforcement officers or intelligence officers. The fact that information of a kind mentioned in this subsection is not required to be disclosed does not imply that such information is required to be disclosed in other provisions of this Part that relate to the disclosure of information. (4) If the senior AFP member elects not to confirm the order, and the order has already been served on the person, then: (a) the order immediately ceases to be in force; and (b) an AFP member must: (i) annotate the order to indicate that it has ceased to be in force; and (ii) cause the annotated order and a copy of the notification to be served personally on the person; and (iii) if the person is a resident of Queensland, or the court made the order in Queensland—give the Queensland public interest monitor a copy of the annotated order and the notification. 104.13 Lawyer may request a copy of an interim control order (1) A lawyer of the person in relation to whom an interim control order is made may attend the place specified in the order as mentioned in paragraph 104.5(1)(g) in order to obtain a copy of the order. (2) This section does not: (a) require more than one person to give the lawyer a copy of the order; or (b) entitle the lawyer to request, be given a copy of, or see, a document other than the order. 104.14 Confirming an interim control order Who may adduce evidence or make submissions (1) If an election has been made to confirm an interim control order, then, on the day specified as mentioned in paragraph 104.5(1)(e), the following persons may adduce evidence (including by calling witnesses or producing material), or make submissions, to the issuing court in relation to the confirmation of the order: (a) the senior AFP member who requested the interim control order; (b) one or more other AFP members; (c) the person in relation to whom the interim control order is made; (d) one or more representatives of the person; (e) if: (i) the person is a resident of Queensland; or (ii) the court made the interim control order in Queensland; the Queensland public interest monitor (unless the monitor is already a representative of the person). (2) Subsection (1) does not otherwise limit the power of the court to control proceedings in relation to the confirmation of an interim control order. (3) Before taking action under this section, the court must consider: (a) the original request for the interim control order; and (b) any evidence adduced, and any submissions made, under subsection (1) in respect of the order. Failure of person or representative etc. to attend (4) The court may confirm the order without variation if: (a) none of the following persons attend the court on the specified day: (i) the person in relation to whom the order is made; (ii) a representative of the person; (iii) if the person is a resident of Queensland, or the court made the order in Queensland—the Queensland public interest monitor; and (b) the court is satisfied on the balance of probabilities that the order was properly served on the person in relation to whom the order is made. Attendance of person or representative etc. (5) The court may take the action mentioned in subsection (6) or (7) if any of the following persons attend the court on the specified day: (a) the person in relation to whom the order is made; (b) a representative of the person; (c) if the person is a resident of Queensland, or the court made the order in Queensland—the Queensland public interest monitor. (6) The court may declare, in writing, the order to be void if the court is satisfied that, at the time of making the order, there were no grounds on which to make the order. (7) Otherwise, the court may: (a) revoke the order if, at the time of confirming the order, the court is not satisfied as mentioned in paragraph 104.4(1)(c); or (b) confirm and vary the order by removing one or more obligations, prohibitions or restrictions if, at the time of confirming the order, the court is satisfied as mentioned in paragraph 104.4(1)(c) but is not satisfied as mentioned in paragraph 104.4(1)(d); or (c) confirm the order without variation if, at the time of confirming the order, the court is satisfied as mentioned in paragraphs 104.4(1)(c) and (d). Note: If the court confirms the interim control order, the court must make a new order under section 104.16. 104.15 When a declaration, or a revocation, variation or confirmation of a control order, is in force (1) If the court declares the interim control order to be void under section 104.14, the order is taken never to have been in force. (2) If the court revokes the interim control order under section 104.14, the order ceases to be in force when the court revokes the order. (3) If the court confirms the interim control order (with or without variation) under section 104.14 then: (a) the interim control order ceases to be in force; and (b) the confirmed control order begins to be in force; when the court makes a corresponding order under section 104.16. 104.16 Terms of a confirmed control order (1) If the issuing court confirms the interim control order under section 104.14, the court must make a corresponding order that: (a) states that the court is satisfied of the matters mentioned in paragraphs 104.4(1)(c) and (d); and (b) specifies the name of the person to whom the order relates; and (c) specifies all of the obligations, prohibitions and restrictions mentioned in subsection 104.5(3) that are to be imposed on the person by the order; and (d) specifies the period during which the order is to be in force, which must not end more than 12 months after the day on which the interim control order was made; and (e) states that the person's lawyer may attend a specified place in order to obtain a copy of the confirmed control order. Note: A confirmed control order that is made in relation to a 16‑ to 18‑year‑old must not end more than 3 months after the day on which the interim control order was made (see section 104.28). (2) Paragraph (1)(d) does not prevent the making of successive control orders in relation to the same person. 104.17 Service of a declaration, or a revocation, variation or confirmation of a control order As soon as practicable after an interim control order is declared to be void, revoked or confirmed (with or without variation) under section 104.14, an AFP member must serve the declaration, the revocation or the confirmed control order personally on the person. Subdivision E—Rights in respect of a control order 104.18 Application by the person for a revocation or variation of a control order (1) A person in relation to whom a confirmed control order is made may apply to an issuing court for the court to revoke or vary the order under section 104.20. (2) The person may make the application at any time after the order is served on the person. (3) The person must give written notice of both the application and the grounds on which the revocation or variation is sought to the following persons: (a) the Commissioner of the Australian Federal Police; (b) if: (i) the person in relation to whom the order is made is a resident of Queensland; or (ii) the court will hear the application in Queensland; the Queensland public interest monitor. (4) 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 revoke or vary the order: (a) the Commissioner; (b) one or more other AFP members; (c) the person in relation to whom the order is made; (d) one or more representatives of the person; (e) if paragraph (3)(b) applies—the Queensland public interest monitor (unless the monitor is a representative of the person). (5) Subsection (4) does not otherwise limit the power of the court to control proceedings in relation to an application to revoke or vary a confirmed control order. 104.19 Application by the AFP Commissioner for a revocation or variation of a control order (1) While a confirmed control order is in force, the Commissioner of the Australian Federal Police must cause an application to be made to an issuing court: (a) to revoke the order, under section 104.20, if the Commissioner is satisfied that the grounds on which the order was confirmed have ceased to exist; and (b) to vary the order, under that section, by removing one or more obligations, prohibitions or restrictions, if the Commissioner is satisfied that those obligations, prohibitions or restrictions should no longer be imposed on the person. (2) The Commissioner must cause written notice of both the application and the grounds on which the revocation or variation is sought to be given to the following persons: (a) the person in relation to whom the order is made; (b) if: (i) the person in relation to whom the order is made is a resident of Queensland; or (ii) the court will hear the application in Queensland; the Queensland public interest monitor. (3) 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 revoke or vary the order: (a) the Commissioner; (b) one or more other AFP members; (c) the person in relation to whom the order is made; (d) one or more representatives of the person; (e) if paragraph (2)(b) applies—the Queensland public interest monitor (unless the monitor is a representative of the person). (4) Subsection (3) does not otherwise limit the power of the court to control proceedings in relation to an application to revoke or vary a confirmed control order. 104.20 Revocation or variation of a control order (1) If an application is made under section 104.18 or 104.19 in respect of a confirmed control order, the court may: (a) revoke the order if, at the time of considering the application, the court is not satisfied as mentioned in paragraph 104.4(1)(c); or (b) vary the order by removing one or more obligations, prohibitions or restrictions if, at the time of considering the application, the court is satisfied as mentioned in paragraph 104.4(1)(c) but is not satisfied as mentioned in paragraph 104.4(1)(d); or (c) dismiss the application if, at the time of considering the application, the court is satisfied as mentioned in paragraphs 104.4(1)(c) and (d). (2) A revocation or variation begins to be in force when the court revokes or varies the order. (3) An AFP member must serve the revocation or variation personally on the person as soon as practicable after a confirmed control order is revoked or varied. 104.21 Lawyer may request a copy of a control order (1) If a control order is confirmed or varied under section 104.14, 104.20 or 104.24, a lawyer of the person in relation to whom the control order is made may attend the place specified in the order as mentioned in paragraph 104.16(1)(e) or 104.25(d) in order to obtain a copy of the order. (2) This section does not: (a) require more than one person to give the lawyer a copy of the order; or (b) entitle the lawyer to request, be given a copy of, or see, a document other than the order. 104.22 Treatment of photographs and impressions of fingerprints (1) A photograph, or an impression of fingerprints, taken as mentioned in paragraph 104.5(3)(j) or (k) must only be used for the purpose of ensuring compliance with the relevant control order. (2) If: (a) a period of 12 months elapses after the control order ceases to be in force; and (b) proceedings in respect of the control order have not been brought, or have been brought and discontinued or completed, within that period; the photograph or the impression must be destroyed as soon as practicable after the end of that 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. Subdivision F—Adding obligations, prohibitions or restrictions to a control order 104.23 Application by the AFP Commissioner for addition of obligations, prohibitions or restrictions (1) The Commissioner of the Australian Federal Police may cause an application to be made to an issuing court to vary, under section 104.24, a confirmed control order, by adding one or more obligations, prohibitions or restrictions mentioned in subsection 104.5(3) to the order, if the Commissioner considers on reasonable grounds that the varied control order in the terms to be sought would substantially assist in preventing a terrorist act. (2) The Commissioner must cause the court to be given: (a) a copy of the additional obligations, prohibitions and restrictions to be imposed on the person by the order; and (b) the following: (i) an explanation as to why each of those obligations, prohibitions and restrictions should be imposed on the person; and (ii) if the Commissioner is aware of any facts relating to why any of those obligations, prohibitions or restrictions should not be imposed on the person—a statement of those facts; and (c) the outcomes and particulars of all previous applications under this section for variations of the order; and (d) information (if any) that the Commissioner has about the person's age. Note 1: A control order cannot be made in relation to a person who is under 16 years of age (see section 104.28). Note 2: An offence might be committed if the application is false or misleading (see sections 137.1 and 137.2). (3) The Commissioner must cause: (a) written notice of the application and the grounds on which the variation is sought; and (b) a copy of the documents mentioned in paragraph (2)(b); and (c) any other details required to enable the person in relation to whom the order is made to understand and respond to the substance of the facts, matters and circumstances which will form the basis of the variation of the order; to be given to the following persons: (d) the person in relation to whom the order is made; (e) if the person is a resident of Queensland, or the court will hear the application in Queensland—the Queensland public interest monitor. (3A) To avoid doubt, subsection (3) does not require any information to be given if disclosure of that information is likely: (a) to prejudice national security (within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004); or (b) to be protected by public interest immunity; or (c) to put at risk ongoing operations by law enforcement agencies or intelligence agencies; or (d) to put at risk the safety of the community, law enforcement officers or intelligence officers. The fact that information of a kind mentioned in this subsection is not required to be disclosed does not imply that such information is required to be disclosed in other provisions of this Part that relate to the disclosure of information. (4) 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 Commissioner; (b) one or more other AFP members; (c) the person in relation to whom the order is made; (d) one or more representatives of the person; (e) if paragraph (3)(b) applies—the Queensland public interest monitor (unless the monitor is a representative of the person). (5) Subsection (4) does not otherwise limit the power of the court to control proceedings in relation to an application to vary a confirmed control order. 104.24 Varying a control order (1) If an application is made under section 104.23, the issuing court may vary the control order, but only if: (a) an application has been made in accordance with section 104.23; and (b) the court is satisfied on the balance of probabilities that each of the additional obligations, prohibitions and restrictions to be imposed on the person by the order is reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the public from a terrorist act. (2) In determining whether each of the additional obligations, prohibitions and restrictions to be imposed on the person by the order is reasonably necessary, and reasonably appropriate and adapted, the court must take into account the impact of the obligation, prohibition or restriction on the person's circumstances (including the person's financial and personal circumstances). (3) The court need not include in the order an obligation, prohibition or restriction that was sought if the court is not satisfied as mentioned in paragraph (1)(b) in respect of that obligation, prohibition or restriction. 104.25 Terms of a varied control order If the issuing court varies the control order under section 104.24, the following must be included in the order: (a) a statement that the court is satisfied of the matter mentioned in paragraph 104.24(1)(b); and (b) the additional obligations, prohibitions and restrictions that are to be imposed on the person by the varied order; and (c) a statement that the variation of the order does not begin to be in force until the varied order is served personally on the person; and (d) a statement that the person's lawyer may attend a specified plac