Commonwealth: Counter-Terrorism Legislation Amendment Act (No. 1) 2016 (Cth)

Counter‑Terrorism Legislation Amendment Act (No. 1) 2016 No. 82, 2016 An Act to amend the law relating to counter‑terrorism, and for related purposes Contents 1 Short title 2 Commencement 3 Schedules Schedule 1—Receiving funds for legal assistance Criminal Code Act 1995 Schedule 2—Control orders for young people Criminal Code Act 1995 Schedule 3—Control orders and tracking devices Criminal Code Act 1995 Schedule 4—Issuing court for control orders Criminal Code Act 1995 Schedule 5—Preventative detention orders Criminal Code Act 1995 Schedule 6—Issuing authorities for preventative detention orders Criminal Code Act 1995 Schedule 7—Application of amendments of the Criminal Code Criminal Code Act 1995 Schedule 8—Monitoring of compliance with control orders etc. Crimes Act 1914 Criminal Code Act 1995 Schedule 9—Telecommunications interception Part 1—Amendments Telecommunications (Interception and Access) Act 1979 Part 2—Transitional provisions Schedule 10—Surveillance devices Surveillance Devices Act 2004 Schedule 11—Offence of advocating genocide Criminal Code Act 1995 Schedule 12—Security assessments Part 1—Main amendments Australian Security Intelligence Organisation Act 1979 Part 2—Consequential amendments Administrative Appeals Tribunal Act 1975 Schedule 13—Classification of publications etc. Classification (Publications, Films and Computer Games) Act 1995 Schedule 14—Delayed notification search warrants Part 1—Amendments Crimes Act 1914 Part 2—Application of amendments Schedule 15—Protecting national security information in control order proceedings Part 1—Main amendments National Security Information (Criminal and Civil Proceedings) Act 2004 Public Interest Disclosure Act 2013 Part 2—Special advocates National Security Information (Criminal and Civil Proceedings) Act 2004 Schedule 16—Dealing with national security information in proceedings National Security Information (Criminal and Civil Proceedings) Act 2004 Schedule 17—Disclosures by taxation officers Taxation Administration Act 1953 Schedule 18—Special intelligence operations Australian Security Intelligence Organisation Act 1979 Counter-Terrorism Legislation Amendment Act (No. 1) 2016 No. 82, 2016 An Act to amend the law relating to counter‑terrorism, and for related purposes [Assented to 29 November 2016] The Parliament of Australia enacts: 1 Short title This Act is the Counter‑Terrorism Legislation Amendment Act (No. 1) 2016. 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 Provisions Commencement Date/Details 1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table The day this Act receives the Royal Assent. 29 November 2016 2. Schedules 1 to 14 The day after this Act receives the Royal Assent. 30 November 2016 3. Schedule 15, Part 1 The day after this Act receives the Royal Assent. 30 November 2016 4. Schedule 15, Part 2 A single day to be fixed by Proclamation. 29 November 2017 However, if the provisions do not commence within the period of 12 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period. 5. Schedules 16 to 18 The day after this Act receives the Royal Assent. 30 November 2016 Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act. (2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act. 3 Schedules Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms. Schedule 1—Receiving funds for legal assistance Criminal Code Act 1995 1 After paragraph 102.6(3)(a) of the Criminal Code Insert: (aa) legal advice or legal representation in connection with the question of whether the organisation is a terrorist organisation; or 2 Subparagraph 102.8(4)(d)(ii) of the Criminal Code Repeal the subparagraph, substitute: (ii) the question of whether the organisation is a terrorist organisation; or Schedule 2—Control orders for young people Criminal Code Act 1995 1 Paragraph 104.2(3)(b) of the Criminal Code Repeal the paragraph, substitute: (b) if the person is at least 18 years of age and the member has information about the person's age—that information; and (ba) if the person is under 18 years of age—information about the person's age; and 2 Subsection 104.2(3) of the Criminal Code (note) Omit "16", substitute "14". 3 Subsection 104.4(2) of the Criminal Code Repeal the subsection, substitute: (2) For the purposes of paragraph (1)(d), 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: (a) as a paramount consideration in all cases—the objects of this Division (see section 104.1); and (b) as a primary consideration in the case where the person is 14 to 17 years of age—the best interests of the person; and (c) as an additional consideration in all cases—the impact of the obligation, prohibition or restriction on the person's circumstances (including the person's financial and personal circumstances). (2A) In determining what is in the best interests of a person for the purposes of paragraph (2)(b), the court must take into account the following: (a) the age, maturity, sex and background (including lifestyle, culture and traditions) of the person; (b) the physical and mental health of the person; (c) the benefit to the person of having a meaningful relationship with his or her family and friends; (d) the right of the person to receive an education; (e) the right of the person to practise his or her religion; (f) any other matter the court considers relevant. 4 Subsection 104.5(1) of the Criminal Code (note 2) Repeal the note, substitute: Note 2: If the person is 14 to 17 years of age, then a confirmed control order must not end more than 3 months after the day on which the interim control order is made (see section 104.28). 5 After subparagraph 104.12(1)(b)(iii) of the Criminal Code Insert: (iiia) that the person has a right to obtain legal advice and legal representation; 6 Subsection 104.12(5) of the Criminal Code (heading) Repeal the heading, substitute: If person is resident, or order made, in Queensland 7 At the end of section 104.12 of the Criminal Code Add: If person is 14 to 17 (6) As soon as practicable after an interim control order is made in relation to a person who is 14 to 17 years of age, and at least 48 hours before the day specified as mentioned in paragraph 104.5(1)(e), an AFP member must take reasonable steps to serve a copy of the order personally on at least one parent or guardian of the person. 8 Subparagraph 104.12A(2)(a)(iii) of the Criminal Code After "other", insert "written". 9 At the end of subsection 104.12A(2) of the Criminal Code Add: ; and (c) if the person is 14 to 17 years of age—take reasonable steps to serve a copy of the documents mentioned in paragraph (a) personally on at least one parent or guardian of the person. 10 At the end of paragraph 104.12A(4)(b) of the Criminal Code Add: ; and (iv) if the person is 14 to 17 years of age—cause reasonable steps to be taken to serve a copy of the annotated order and the notification personally on at least one parent or guardian of the person. 11 Before subsection 104.14(1) of the Criminal Code Insert: When this section applies (1A) This section applies if: (a) an interim control order is made in relation to a person; and (b) an election is made under section 104.12A to confirm the order; and (c) the issuing court is satisfied on the balance of probabilities that section 104.12 and subsection 104.12A(2) have been complied with in relation to the order. 12 Subsection 104.14(1) of the Criminal Code Omit "If an election has been made to confirm an interim control order, then, on", substitute "On". 13 Paragraph 104.14(1)(e) of the Criminal Code Omit "(unless the monitor is already a representative of the person)". 14 Subsection 104.14(4) of the Criminal Code Repeal the subsection (not including the heading), substitute: (4) The court may confirm the order without variation if none 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. 15 Subsection 104.16(1) of the Criminal Code (note) Repeal the note, substitute: Note: If the person is 14 to 17 years of age, then a confirmed control order must not end more than 3 months after the day on which the interim control order is made (see section 104.28). 16 At the end of section 104.17 of the Criminal Code Add: If person is 14 to 17 (4) If the person is 14 to 17 years of age, then as soon as practicable after the interim control order is declared to be void, revoked or confirmed (with or without variation) under section 104.14, an AFP member must take reasonable steps to serve a copy of the declaration, revocation or confirmed control order personally on at least one parent or guardian of the person. 17 Paragraph 104.18(4)(e) of the Criminal Code Omit "(unless the monitor is a representative of the person)". 18 After subsection 104.19(2) of the Criminal Code Insert: (2A) If the person is 14 to 17 years of age, the Commissioner must cause reasonable steps to be taken to give written notice of both the application and the grounds on which the revocation or variation is sought to at least one parent or guardian of the person. 19 Paragraph 104.19(3)(e) of the Criminal Code Omit "(unless the monitor is a representative of the person)". 20 Subsection 104.20(3) of the Criminal Code Repeal the subsection, substitute: (3) As soon as practicable after a confirmed control order in relation to a person is revoked or varied, an AFP member must: (a) serve the revocation or variation personally on the person; and (b) if the person is 14 to 17 years of age—take reasonable steps to serve a copy of the revocation or variation personally on at least one parent or guardian of the person. 21 Paragraph 104.23(2)(d) of the Criminal Code Repeal the paragraph, substitute: (d) if the person is at least 18 years of age and the Commissioner has information about the person's age—that information; and (e) if the person is under 18 years of age—information about the person's age. 22 Subsection 104.23(2) of the Criminal Code (note 1) Omit "16", substitute "14". 23 Subsection 104.23(3) of the Criminal Code Repeal the subsection, substitute: (3) As soon as practicable after an application is made under subsection (1), the Commissioner must: (a) cause the documents mentioned in subsection (3AA) to be served personally on the person in relation to whom the order is made; and (b) if the person is a resident of Queensland, or the court will hear the application in Queensland—cause the documents mentioned in subsection (3AA) to be given to the Queensland public interest monitor; and (c) if the person is 14 to 17 years of age—cause reasonable steps to be taken to serve the documents mentioned in subsection (3AA) personally on at least one parent or guardian of the person. (3AA) The documents are the following: (a) written notice of the application and the grounds on which the variation is sought; (b) a copy of the documents mentioned in paragraph (2)(b); (c) any other written 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. 24 Subsection 104.23(3A) of the Criminal Code Omit "subsection (3) does", substitute "subsections (3) and (3AA) do". 25 Paragraph 104.23(4)(e) of the Criminal Code Omit "(unless the monitor is a representative of the person)". 26 Subsection 104.24(2) of the Criminal Code Repeal the subsection, substitute: (2) For the purposes of paragraph (1)(b), 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: (a) as a paramount consideration in all cases—the objects of this Division (see section 104.1); and (b) as a primary consideration in the case where the person is 14 to 17 years of age—the best interests of the person; and (c) as an additional consideration in all cases—the impact of the obligation, prohibition or restriction on the person's circumstances (including the person's financial and personal circumstances). (2A) In determining what is in the best interests of the person for the purposes of paragraph (2)(b), the court must take into account the matters referred to in subsection 104.4(2A). 27 At the end of section 104.26 of the Criminal Code Add: If person is 14 to 17 (5) As soon as practicable after a control order in relation to a person who is 14 to 17 years of age is varied under section 104.24, an AFP member must take reasonable steps to serve a copy of the varied order personally on at least one parent or guardian of the person. 28 Subdivision H of Division 104 of Part 5.3 of the Criminal Code (heading) Repeal the heading, substitute: Subdivision H—Special rules for young people (14 to 17) 29 Subsection 104.28(1) of the Criminal Code (heading) Repeal the heading, substitute: Rule for people under 14 30 Subsection 104.28(1) of the Criminal Code Omit "16", substitute "14". 31 Subsection 104.28(2) of the Criminal Code (heading) Repeal the heading, substitute: Rule for people 14 to 17 32 Subsection 104.28(2) of the Criminal Code Omit "at least 16 but under 18", substitute "14 to 17 years of age". 32A At the end of section 104.28 of the Criminal Code Add: Young person's right to legal representation (4) If an issuing court is satisfied, in proceedings relating to a control order, that: (a) the person to whom the control order relates, or the person in relation to whom the control order is requested, is at least 14 but under 18; and (b) the person does not have a lawyer acting in relation to the proceedings; the court must appoint a lawyer to act for the person in relation to the proceedings. (5) However, the issuing court is not required to appoint a lawyer if: (a) the proceedings are ex parte proceedings relating to a request for an interim control order; or (b) the person refused a lawyer previously appointed under subsection (4) during proceedings relating to: (i) the control order; or (ii) if the control order is a confirmed control order—the interim control order that was confirmed. (6) The regulations may provide in relation to the appointing of lawyers under subsection (4) (including in relation to lawyers appointed under that subsection). 33 Before section 104.28A of the Criminal Code Insert: Subdivision I—Miscellaneous 34 At the end of subsection 104.29(2) of the Criminal Code Add: (j) for control orders relating to people who are 14 to 17 years of age—the matters referred to in paragraphs (a) to (i) in so far as those matters specifically relate to those control orders. Schedule 3—Control orders and tracking devices Criminal Code Act 1995 1 After subsection 104.5(3) of the Criminal Code Insert: (3A) If the court imposes a requirement under paragraph (3)(d) that the person wear a tracking device, then the court must also impose on the person by the order a requirement that the person do all of the following: (a) take steps specified in the order (if any) and reasonable steps to ensure that the tracking device and any equipment necessary for the operation of the tracking device are or remain in good working order; (b) report to persons specified in the order (if any), at the times and places specified in the order (if any), for the purposes of having the tracking device inspected; (c) if the person becomes aware that the tracking device or any equipment necessary for the operation of the tracking device is not in good working order—notify an AFP member as soon as practicable, but no later than 4 hours, after becoming so aware. (3B) If the court imposes a requirement under paragraph (3)(d) that the person wear a tracking device, then the court must also include in the order an authorisation for one or more AFP members: (a) to take steps specified in the order to ensure that the tracking device and any equipment necessary for the operation of the tracking device are or remain in good working order; and (b) to enter one or more premises specified in the order for the purposes of installing any equipment necessary for the operation of the tracking device. 2 Subdivision G of Division 104 of Part 5.3 of the Criminal Code (heading) Repeal the heading, substitute: Subdivision G—Offences relating to control orders 3 At the end of Subdivision G of Division 104 of Part 5.3 of the Criminal Code Add: 104.27A Offence relating to tracking devices (1) A person commits an offence if: (a) a control order is in force in relation to the person; and (b) the control order requires the person to wear a tracking device; and (c) the person engages in conduct; and (d) the conduct results in interference with, or disruption or loss of, a function of the tracking device. Penalty: Imprisonment for 5 years. (2) A person (the perpetrator) commits an offence if: (a) the perpetrator knows that, or is reckless as to whether, a control order is in force in relation to another person; and (b) the perpetrator knows that, or is reckless as to whether, the control order requires the other person to wear a tracking device; and (c) the perpetrator engages in conduct; and (d) the conduct results in interference with, or disruption or loss of, a function of the tracking device. Penalty: Imprisonment for 5 years. Schedule 4—Issuing court for control orders Criminal Code Act 1995 1 Subsection 100.1(1) of the Criminal Code (paragraph (b) of the definition of issuing court) Repeal the paragraph. Schedule 5—Preventative detention orders Criminal Code Act 1995 1 Paragraph 105.1(a) of the Criminal Code Repeal the paragraph, substitute: (a) prevent a terrorist act that is capable of being carried out, and could occur, within the next 14 days from occurring; or 2 Subsection 105.4(5) of the Criminal Code Repeal the subsection, substitute: (5) A terrorist act referred to in subsection (4) must be one that: (a) for paragraphs (4)(a) and (c)—the AFP member suspects, on reasonable grounds; or (b) for paragraphs (4)(b) and (c)—the issuing authority is satisfied there are reasonable grounds to suspect; is capable of being carried out, and could occur, within the next 14 days. Schedule 6—Issuing authorities for preventative detention orders Criminal Code Act 1995 1 Subsection 100.1(1) of the Criminal Code (definition of Judge) Repeal the definition. 2 Subsection 100.1(1) of the Criminal Code (paragraph (c) of the definition of superior court) Repeal the paragraph. 3 Paragraph 105.2(1)(b) of the Criminal Code After "Judge", insert "of the Federal Court of Australia or of the Federal Circuit Court of Australia". Schedule 7—Application of amendments of the Criminal Code Criminal Code Act 1995 1 In the appropriate position in Division 106 of Part 5.3 of the Criminal Code Add: 106.7 Application provision for certain amendments in the Counter‑Terrorism Legislation Amendment Act (No. 1) 2016 (1) Division 104, as amended by Schedules 2 and 3 to the Counter‑Terrorism Legislation Amendment Act (No. 1) 2016, applies to an order made under that Division after the commencement of this section, where: (a) the order is requested (however described) after that commencement; and (b) the conduct in relation to which that request is made occurs before or after that commencement. (2) Despite the amendment made by Schedule 4 to the Counter‑Terrorism Legislation Amendment Act (No. 1) 2016, Division 104 continues to apply in relation to: (a) a request for an interim control order, where the request was made before the commencement of this section; and (b) the making of an interim control order in response to such a request; and (c) the making of a declaration in relation to such an interim control order; and (d) the revocation of such an interim control order; and (e) the confirmation of such an interim control order (with or without variation); and (f) the making of a confirmed control order that corresponds to such an interim control order that has been so confirmed; and (g) the revocation or variation of such a confirmed control order; and (h) any other proceedings under that Division that are associated with, or incidental to, a matter covered by any of the above paragraphs; as if the amendment had not been made. (3) Section 104.29, as amended by Schedule 8 to the Counter‑Terrorism Legislation Amendment Act (No. 1) 2016, applies in relation to any year that ends on 30 June after the commencement of this section. (4) Division 105, as amended by Schedule 5 to the Counter‑Terrorism Legislation Amendment Act (No. 1) 2016, applies in relation to an application for the following made after the commencement of this section: (a) a preventative detention order; (b) an initial preventative detention order; (c) an extension of an initial preventative detention order; (d) a continued preventative detention order; (e) an extension of a continued preventative detention order. Schedule 8—Monitoring of compliance with control orders etc. Crimes Act 1914 1 After Part IAAA Insert: Part IAAB—Monitoring of compliance with control orders etc. Division 1—Introduction 3ZZJA Simplified outline of this Part • If a control order is in force in relation to a person, and the person has a prescribed connection with premises, a constable may enter and search the premises if: (a) the person is the occupier of the premises and consents to the entry; or (b) the entry is made under a monitoring warrant. • If a control order is in force in relation to a person, a constable may conduct an ordinary search or a frisk search of the person if: (a) the person consents to the search; or (b) the search is conducted under a monitoring warrant. • A search must be for any of the following purposes: (a) the protection of the public from a terrorist act; (b) preventing the provision of support for, or the facilitation of, a terrorist act; (c) preventing the provision of support for, or the facilitation of, the engagement in a hostile activity in a foreign country; (d) determining whether the control order has been, or is being, complied with. 3ZZJB Definitions In this Part: confirmed control order has the same meaning as in Part 5.3 of the Criminal Code. control order has the same meaning as in Part 5.3 of the Criminal Code. damage, in relation to data, includes damage by erasure of data or addition of other data. engage in a hostile activity has the same meaning as in Part 5.3 of the Criminal Code. evidential material has the same meaning as in Part IAA. foreign country, when used in the expression hostile activity in a foreign country, has the same meaning as in the Criminal Code. frisk search has the same meaning as in Part IAA. inspecting officer means a person appointed under subsection 3ZZUA(1). interim control order has the same meaning as in Part 5.3 of the Criminal Code. issuing officer means a magistrate. monitoring powers: (a) in relation to premises—has the meaning given by sections 3ZZKB, 3ZZKC and 3ZZKD; or (b) in relation to a person—has the meaning given by section 3ZZLB. monitoring warrant means a warrant under section 3ZZOA or 3ZZOB. ordinary search has the same meaning as in Part IAA. premises includes the following: (a) a structure, building or conveyance; (b) a place (whether or not enclosed or built on); (c) a part of a thing referred to in paragraph (a) or (b). prescribed connection with premises has the meaning given by section 3ZZJC. recently used conveyance, in relation to a search of a person, means a conveyance that the person had operated or occupied at any time within 24 hours before the search commenced. relevant data has the meaning given by subsection 3ZZKC(3). seizable item has the same meaning as in Part IAA. staff member of the Australian Federal Police means a person referred to in paragraph (a) of the definition of law enforcement officer in subsection 3(1). State or Territory agency: see section 3ZZUF. State or Territory inspecting authority: see section 3ZZUF. strip search has the same meaning as in Part IAA. 3ZZJC Prescribed connection with premises For the purposes of this Part, a person has a prescribed connection with premises if: (a) the person: (i) is the legal or beneficial owner of the premises (whether alone or together with one or more other persons); or (ii) has any other legal or equitable estate or interest in the premises; or (b) the person occupies, or resides on, the premises; or (c) the person has possession or control of the premises (whether alone or together with one or more other persons); or (d) the person performs any of the duties of his or her employment on the premises; or (e) the person carries on a business on the premises (whether alone or together with one or more other persons); or (f) the person performs voluntary work on the premises; or (g) both: (i) the premises are used by a school, college, university or other educational institution; and (ii) the person attends the premises in his or her capacity as a student at the school, college, university or other educational institution. 3ZZJD Privileges not abrogated Self‑incrimination (1) This Part (other than section 3ZZUE) does not affect the right of a person to refuse to answer a question, give information, or produce a document, on the ground that the answer to the question, the information, or the production of the document, might tend to incriminate him or her or make him or her liable to a penalty. Legal professional privilege (2) This Part (other than section 3ZZUE) does not affect the right of a person to refuse to answer a question, give information, or produce a document, on the ground that: (a) the answer to the question or the information would be privileged from being given on the ground of legal professional privilege; or (b) the document would be privileged from being produced on the ground of legal professional privilege. Other legislation not affected (3) The fact that this section is included in this Part does not imply that the privilege against self‑incrimination or legal professional privilege is abrogated in any other law of the Commonwealth. 3ZZJE Application of Part (1) This Part is not intended to limit or exclude the operation of another law of the Commonwealth (including other provisions of this Act) relating to: (a) the search of premises; or (b) the searching of persons or conveyances; or (c) the seizure of things; or (d) the requesting of information or documents from persons. (2) To avoid any doubt, it is declared that even though another law of the Commonwealth (including other provisions of this Act) provides power to do one or more of the things referred to in subsection (1), a similar power conferred by this Part may be used despite the existence of the power under the other law. Division 2—Powers of constables in relation to premises Subdivision A—Monitoring powers 3ZZKA Entering premises by consent or under a warrant (1) If: (a) a control order is in force in relation to a person; and (b) the person has a prescribed connection with particular premises; a constable may enter the premises, and exercise the monitoring powers, for any of the following purposes: (c) the protection of the public from a terrorist act; (d) preventing the provision of support for, or the facilitation of, a terrorist act; (e) preventing the provision of support for, or the facilitation of, the engagement in a hostile activity in a foreign country; (f) determining whether the control order has been, or is being, complied with. Note: The monitoring powers are set out in sections 3ZZKB, 3ZZKC and 3ZZKD. (2) However, a constable is not authorised to enter the premises unless: (a) the person: (i) is the occupier of the premises; and (ii) has consented to the entry; or (b) the entry is made under a monitoring warrant. Note: If entry to the premises is with the occupier's consent, the constable must leave the premises if the consent ceases to have effect (see section 3ZZNA). 3ZZKB General monitoring powers The following are the monitoring powers that a constable may exercise in relation to premises under section 3ZZKA: (a) the power to search the premises and any thing on the premises; (b) the power to search for and record fingerprints found at the premises; (c) the power to take samples of things found at the premises; (d) the power to examine or observe any activity conducted on the premises; (e) the power to inspect, examine, take measurements of or conduct tests on any thing on the premises; (f) the power to make any still or moving image or any recording of the premises or any thing on the premises; (g) the power to inspect any document on the premises; (h) the power to take extracts from, or make copies of, any such document; (i) the power to take onto the premises such equipment and materials as the constable requires for the purpose of exercising powers in relation to the premises; (j) the powers set out in subsections 3ZZKC(1) and (4) and 3ZZKD(2). 3ZZKC Operating electronic equipment (1) The monitoring powers include the power to: (a) operate electronic equipment on the premises; and (b) use a disk, tape or other storage device that: (i) is on the premises; and (ii) can be used with the equipment or is associated with it. (2) The monitoring powers include the powers mentioned in subsection (4) if relevant data is found in the exercise of the power under subsection (1). (3) Relevant data means information relevant to: (a) the protection of the public from a terrorist act; or (b) preventing the provision of support for, or the facilitation of, a terrorist act; or (c) preventing the provision of support for, or the facilitation of, the engagement in a hostile activity in a foreign country; or (d) determining whether the relevant control order has been, or is being, complied with. (4) The powers are as follows: (a) the power to operate electronic equipment on the premises to put the relevant data in documentary form and remove the documents so produced from the premises; (b) the power to operate electronic equipment on the premises to transfer the relevant data to a disk, tape or other storage device that: (i) is brought to the premises for the exercise of the power; or (ii) is on the premises and the use of which for that purpose has been agreed in writing by the occupier of the premises; and remove the disk, tape or other storage device from the premises. (5) A constable may operate electronic equipment as mentioned in subsection (1) or (4) only if the constable believes on reasonable grounds that the operation of the equipment can be carried out without damage to the equipment. Note: For compensation for damage to electronic equipment, see section 3ZZNF. 3ZZKD Securing electronic equipment to obtain expert assistance Scope (1) This section applies if a constable enters premises under a monitoring warrant. Securing equipment (2) The monitoring powers include the power to secure any electronic equipment that is on the premises if the constable suspects on reasonable grounds that: (a) there is relevant data on the premises; and (b) the relevant data may be accessible by operating the equipment; and (c) expert assistance is required to operate the equipment; and (d) the relevant data may be destroyed, altered or otherwise interfered with, if the constable does not take action under this subsection. The equipment may be secured by locking it up, placing a guard or any other means. (3) The constable must give notice to the occupier of the premises, or another person who apparently represents the occupier, of: (a) the constable's intention to secure the equipment; and (b) the fact that the equipment may be secured for up to 24 hours. Period equipment may be secured (4) The equipment may be secured until the earlier of the following happens: (a) the 24‑hour period ends; (b) the equipment has been operated by the expert. Note: For compensation for damage to electronic equipment, see section 3ZZNF. Extensions (5) The constable may apply to an issuing officer for an extension of the 24‑hour period if the constable believes on reasonable grounds that the equipment needs to be secured for longer than that period. (6) Before making the application, the constable must give notice to the occupier of the premises, or another person who apparently represents the occupier, of his or her intention to apply for an extension. The occupier or other person is entitled to be heard in relation to that application. (7) The 24‑hour period may be extended more than once. Note: For the process by which an issuing officer may extend the period, see section 3ZZQA. Subdivision B—Powers to ask questions and seek production of documents 3ZZKE Asking questions and seeking production of documents Scope (1) This section applies if a constable enters premises under section 3ZZKA. Entry with consent (2) If the entry is authorised because the occupier of the premises consented to the entry, the constable may ask the occupier to answer any questions, and produce any document, that is likely to assist in: (a) the protection of the public from a terrorist act; or (b) preventing the provision of support for, or the facilitation of, a terrorist act; or (c) preventing the provision of support for, or the facilitation of, the engagement in a hostile activity in a foreign country; or (d) determining whether the relevant control order has been, or is being, complied with. Note 1: A person is not required to answer a question, or produce a document, in response to a request under this subsection. Note 2: See also sections 3ZZRC and 3ZZRD. Entry under a monitoring warrant (3) If: (a) the entry is authorised by a monitoring warrant; and (b) the warrant authorises the constable to exercise powers under this subsection; the constable may (subject to subsections (4) to (7)) require any person on the premises to answer any questions, and produce any document, that is likely to assist in: (c) the protection of the public from a terrorist act; or (d) preventing the provision of support for, or the facilitation of, a terrorist act; or (e) preventing the provision of support for, or the facilitation of, the engagement in a hostile activity in a foreign country; or (f) determining whether the relevant control order has been, or is being, complied with. Note: See also sections 3ZZRC and 3ZZRD. Legal professional privilege and privilege against self‑incrimination (4) Before a constable requires a person to answer a question or produce a document under subsection (3), the constable must explain the effect of section 3ZZJD to the person. (5) An answer to a question or a document produced under subsection (3) by a person is not admissible in evidence against him or her in criminal proceedings if a constable fails to explain the effect of section 3ZZJD to the person in accordance with subsection (4). The failure does not otherwise affect the use of the answer or document. Note: For the uses that may be made of the answer or document, see sections 3ZZRC and 3ZZRD. Exceptions to subsection (3) (6) A person is not subject to a requirement under subsection (3) if: (a) the person does not possess the information or document required; and (b) the person has taken all reasonable steps available to the person to obtain the information or document required and has been unable to obtain it. (7) A person is not subject to a requirement under subsection (3) to produce a document if the document is not at the premises. Offence (8) A person commits an offence if: (a) the person is subject to a requirement under subsection (3); and (b) the person engages in conduct; and (c) the person's conduct breaches the requirement. Penalty for contravention of this subsection: 30 penalty units. Subdivision C—Other powers 3ZZKF Other powers Scope (1) This section applies if: (a) a constable enters premises under section 3ZZKA; and (b) the entry is authorised by a monitoring warrant. Powers (2) The constable has the following powers in relation to the premises: (a) the power to seize things found during the exercise of monitoring powers on the premises that the constable suspects on reasonable grounds to be: (i) evidential material; or (ii) evidential material (within the meaning of the Proceeds of Crime Act 2002); or (iii) tainted property (within the meaning of that Act); or (iv) seizable items; (b) the power to conduct an ordinary search or a frisk search of a person at or near the premises if the constable suspects on reasonable grounds that the person has any evidential material or seizable items in his or her possession; (c) the power to seize other things found while conducting an ordinary search or a frisk search of a person at or near the premises that the constable suspects on reasonable grounds to be: (i) evidential material; or (ii) evidential material (within the meaning of the Proceeds of Crime Act 2003); or (iii) tainted property (within the meaning of that Act); or (iv) seizable items. 3ZZKG Availability of assistance and use of force in executing a warrant Scope (1) This section applies if: (a) a constable enters premises under section 3ZZKA; and (b) the entry is authorised by a monitoring warrant. Availability of assistance and use of force (2) In: (a) executing the warrant; or (b) exercising the powers set out in section 3ZZKF in relation to the premises; the constable may use such force against persons and things as is necessary and reasonable in the circumstances. (3) In executing the warrant, the constable may obtain such assistance as is necessary and reasonable in the circumstances. (4) If a person (other than a constable) has been authorised by the constable to assist in executing the warrant, the person may: (a) enter the premises; and (b) exercise the monitoring powers in relation to the premises; and (c) in: (i) entering the premises; or (ii) exercising the monitoring powers; use such force against things as is necessary and reasonable in the circumstances. (5) If a person (other than a constable) has been authorised by the constable to assist in executing the warrant: (a) the person may only exercise the monitoring powers set out in subsection 3ZZKD(2) if the constable forms the suspicion mentioned in that subsection; and (b) the person must not exercise a power set out in subsection 3ZZKD(5) or section 3ZZKE or 3ZZKF. (6) A power exercised by a person assisting the constable as mentioned in subsection (4) is taken to have been exercised by the constable. Division 3—Powers of constables in relation to persons subject to control orders 3ZZLA Searching a person by consent or under a warrant (1) If a control order is in force in relation to a person, a constable may conduct an ordinary search or a frisk search of the person, and exercise the monitoring powers, for any of the following purposes: (a) the protection of the public from a terrorist act; (b) preventing the provision of support for, or the facilitation of, a terrorist act; (c) preventing the provision of support for, or the facilitation of, the engagement in a hostile activity in a foreign country; (d) determining whether the control order has been, or is being, complied with. Note: The monitoring powers are set out in section 3ZZLB. (2) However, a constable is not authorised to conduct an ordinary search or a frisk search of the person unless: (a) the person has consented to the search; or (b) the search is conducted under a monitoring warrant. 3ZZLB Monitoring powers The following are the monitoring powers that a constable may exercise in relation to a person under section 3ZZLA: (a) the power to search things found in the possession of the person; (b) the power to search any recently used conveyance; (c) the power to record fingerprints from things found in the course of: (i) a search under section 3ZZLA; or (ii) a search under paragraph (a) or (b) of this section; (d) the power to take samples from things found in the course of: (i) a search under section 3ZZLA; or (ii) a search under paragraph (a) or (b) of this section. 3ZZLC Seizure powers Scope (1) This section applies if: (a) a constable conducts a search of a person, or of a recently used conveyance, under section 3ZZLA; and (b) the search is authorised by a monitoring warrant. Powers (2) The constable has the following powers: (a) the power to seize things found in the course of the search that the constable suspects on reasonable grounds to be: (i) evidential material; or (ii) seizable items; (b) the power to seize other things found on or in the possession of the person, or in the recently used conveyance, in the course of the search that the constable suspects on reasonable grounds to be: (i) evidential material (within the meaning of the Proceeds of Crime Act 2002); or (ii) tainted property (within the meaning of that Act). 3ZZLD Availability of assistance and use of force in executing a warrant Scope (1) This section applies if: (a) a constable conducts a search of a person, or of a recently used conveyance, under section 3ZZLA; and (b) the search is authorised by a monitoring warrant. Availability of assistance and use of force (2) In: (a) executing the warrant; or (b) exercising the powers set out in section 3ZZLC in relation to the person or conveyance; the constable may use such force against persons and things as is necessary and reasonable in the circumstances. (3) In executing the warrant, the constable may obtain such assistance as is necessary and reasonable in the circumstances. (4) If a person (other than a constable) has been authorised by the constable to assist in executing the warrant, the person may: (a) exercise the monitoring powers in relation to the person mentioned in paragraph (1)(a); and (b) in exercising the monitoring powers, use such force against things as is necessary and reasonable in the circumstances. (5) If a person (other than a constable) has been authorised by the constable to assist in executing the warrant, the person must not exercise a power set out in section 3ZZLC. (6) A power exercised by a person assisting the constable as mentioned in subsection (4) is taken to have been exercised by the constable. Division 4—Obligations and incidental powers of constables 3ZZNA Consent of occupier of premises (1) Before obtaining the consent of an occupier of premises for the purposes of paragraph 3ZZKA(2)(a), a constable must inform the occupier that the occupier may refuse consent. (2) A consent has no effect unless the consent is voluntary. (3) A consent may be expressed to be limited to entry during a particular period. If so, the consent has effect for that period unless the consent is withdrawn before the end of that period. (4) A consent that is not limited as mentioned in subsection (3) has effect until the consent is withdrawn. (5) If a constable entered premises because of the consent of the occupier of the premises, the constable, and any person assisting the constable, must leave the premises if the consent ceases to have effect. (6) If: (a) a constable enters premises because of the consent of the occupier of the premises; and (b) the constable has not shown the occupier his or her identity card before entering the premises; the constable must do so on, or as soon as is reasonably practicable after, entering the premises. 3ZZNB Consent to search of a person (1) Before obtaining the consent of a person for the purposes of paragraph 3ZZLA(2)(a), a constable must inform the person that the person may refuse consent. (2) A consent has no effect unless the consent is voluntary. (3) A consent may be expressed to be limited to a particular period. If so, the consent has effect for that period unless the consent is withdrawn before the end of that period. (4) A consent that is not limited as mentioned in subsection (3) has effect until the consent is withdrawn. 3ZZNC Announcement before entry under warrant Before entering premises under a monitoring warrant, a constable must: (a) announce that he or she is authorised to enter the premises; and (b) show his or her identity card to the occupier of the premises, or to another person who apparently represents the occupier, if the occupier or other person is present at the premises; and (c) give any person at the premises an opportunity to allow entry to the premises. 3ZZND Constable to be in possession of warrant A constable executing a monitoring warrant must be in possession of the warrant or a copy of the warrant. 3ZZNE Details of warrant etc. to be given to occupier If: (a) a monitoring warrant is being executed by a constable in relation to premises; and (b) the occupier of the premises, or another person who apparently represents the occupier, is present at the premises; the constable must, as soon as practicable, make a copy of the warrant available to the occupier or other person. 3ZZNF Compensation for damage to electronic equipment Scope (1) This section applies if: (a) as a result of electronic equipment being operated as mentioned in this Part: (i) damage is caused to the equipment; or (ii) the data recorded on the equipment is damaged; or (iii) programs associated with the use of the equipment, or with the use of the data, are damaged or corrupted; and (b) the damage or corruption occurs because: (i) insufficient care was exercised in selecting the person who was to operate the equipment; or (ii) insufficient care was exercised by the person operating the equipment. Compensation (2) The Commonwealth must pay the owner of the equipment, or the user of the data or programs, such reasonable compensation for the damage or corruption as the Commonwealth and the owner or user agree on. (3) However, if the owner or user and the Commonwealth fail to agree, the owner or user may institute proceedings in: (a) the Federal Court of Australia or the Federal Circuit Court of Australia; or (b) a court of a State or Territory that has jurisdiction in relation to the matter; for such reasonable amount of compensation as the court determines. (4) In determining the amount of compensation payable, regard is to be had to whether the occupier of the premises, or the occupier's employees or agents, if they were available at the time, provided any appropriate warning or guidance on the operation of the equipment. 3ZZNG Occupier entitled to be present during search (1) If: (a) a monitoring warrant in relation to premises is being executed; and (b) the occupier of the premises, or another person who apparently represents the occupier, is present at the premises; the person is entitled to observe the search being conducted. (2) The right to observe the search being conducted ceases if the person impedes the search. (3) This section does not prevent 2 or more areas of the premises being searched at the same time. 3ZZNH Person subject to a control order is entitled to be present during search (1) If: (a) a monitoring warrant in relation to premises is being executed; and (b) the warrant was issued on the basis that a control order is in force in relation to a person; and (c) the person is present at the premises; the person is entitled to observe the search being conducted. (2) The right to observe the search being conducted ceases if the person impedes the search. (3) This section does not prevent 2 or more areas of the premises being searched at the same time. Division 5—Monitoring warrants 3ZZOA Monitoring warrant in relation to premises Application for warrant (1) A constable may apply to an issuing officer for a warrant under this section in relation to premises. Issue of warrant (2) The issuing officer may issue the warrant if the issuing officer is satisfied, by information on oath or affirmation, that: (a) a control order is in force in relation to a person; and (b) the person has a prescribed connection with the premises; and (c) having regard to: (i) the nature of the person's prescribed connection with the premises; and (ii) one or more of the matters set out in paragraphs (4)(a) to (f), and the matter set out in paragraph (4)(g); and (iii) such other matters (if any) as the issuing officer considers relevant; it is reasonably necessary that one or more constables should have access to the premises for the purposes of: (iv) the protection of the public from a terrorist act; or (v) preventing the provision of support for, or the facilitation of, a terrorist act; or (vi) preventing the provision of support for, or the facilitation of, the engagement in a hostile activity in a foreign country; or (vii) determining whether the control order has been, or is being, complied with. (3) The issuing officer must not issue the warrant unless the applicant or some other person has given to the issuing officer, either orally or by affidavit, such further information (if any) as the issuing officer requires concerning the grounds on which the issue of the warrant is being sought. (4) The matters referred to in subparagraph (2)(c)(ii) are the following: (a) the possibility that the person has engaged, is engaging, or will engage, in a terrorist act; (b) the possibility that the person has provided, is providing, or will provide, support for a terrorist act; (c) the possibility that the person has facilitated, is facilitating, or will facilitate, a terrorist act; (d) the possibility that the person has provided, is providing, or will provide, support for the engagement in a hostile activity in a foreign country; (e) the possibility that the person has facilitated, is facilitating, or will facilitate, the engagement in a hostile activity in a foreign country; (f) the possibility that the person has contravened, is contravening, or will contravene, the control order; (g) whether allowing one or more constables to have access to the premises, and exercise the monitoring powers in relation to the premises and the powers set out in section 3ZZKF in relation to the premises, would be likely to have the least interference with any person's liberty and privacy that is necessary in the circumstances. Content of warrant (5) The warrant must: (a) describe the premises to which the warrant relates; and (b) state that the warrant is issued under this section; and (c) state the purpose or purposes for which the warrant is issued; and (d) authorise one or more constables (whether or not named in the warrant) from time to time while the warrant remains in force: (i) to enter the premises; and (ii) to exercise the monitoring powers in relation to the premises; and (iii) to exercise the powers set out in section 3ZZKF in relation to the premises; and (e) state whether entry is authorised to be made at any time of the day or during specified hours of the day; and (f) specify the time at which the warrant expires (see subsection (7)); and (g) state whether the warrant authorises a constable to exercise powers under subsection 3ZZKE(3) in relation to the entry; and (h) state that a person who is not a constable may be authorised under section 3ZZKG to assist in executing the warrant; and (i) state the name of the person to whom the relevant control order relates; and (j) describe the nature of the person's prescribed connection with the premises; and (k) state that the control order is in force; and (l) state whether the control order is an interim control order or a confirmed control order; and (m) specify the date the control order was made; and (n) specify the court that made the control order; and (o) if the control order is an interim control order—specify the date the order was served on the person; and (p) if the control order is a confirmed control order—specify the end of the period during which the order is in force; and (q) if the warrant is issued for the purposes of determining whether the control order has been, or is being, complied with—specify the obligations, prohibitions and restrictions that are imposed by the order. (6) To avoid doubt, paragraph (5)(c) does not require the purpose or purposes for which the warrant is issued to be specified in the warrant if disclosure of that purpose, or those purposes, is likely to prejudice national security (within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004). (7) The time stated in the warrant under paragraph (5)(f) as the time at which the warrant expires must be a time that is not later than the end of the seventh day after the day on which the warrant is issued. Example: If a warrant is issued at 3 pm on a Monday, the expiry time specified must not be later than midnight on Monday in the following week. (8) Paragraph (5)(f) and subsection (7) do not prevent the issue of successive monitoring warrants in relation to the same premises. 3ZZOB Monitoring warrant in relation to a person Application for warrant (1) A constable may apply to an issuing officer for a warrant under this section in relation to a person. Issue of warrant (2) The issuing officer may issue the warrant if the issuing officer is satisfied, by information on oath or affirmation, that: (a) a control order is in force in relation to the person; and (b) having regard to: (i) one or more of the matters set out in paragraphs (4)(a) to (f), and the matter set out in paragraph (4)(g); and (ii) such other matters (if any) as the issuing officer considers relevant; it is reasonably necessary that a constable should conduct an ordinary search or a frisk search of the person for the purposes of: (iii) the protection of the public from a terrorist act; or (iv) preventing the provision of support for, or the facilitation of, a terrorist act; or (v) preventing the provision of support for, or the facilitation of, the engagement in a hostile activity in a foreign country; or (vi) determining whether the control order has been, or is being, complied with. (3) The issuing officer must not issue the warrant unless the applicant or some other person has given to the issuing officer, either orally or by affidavit, such further information (if any) as the issuing officer requires concerning the grounds on which the issue of the warrant is being sought. (4) The matters referred to in subparagraph (2)(b)(i) are the following: (a) the possibility that the person has engaged, is engaging, or will engage, in a terrorist act; (b) the possibility that the person has provided, is providing, or will provide, support for a terrorist act; (c) the possibility that the person has facilitated, is facilitating, or will facilitate, a terrorist act; (d) the possibility that the person has provided, is providing, or will provide, support for the engagement in a hostile activity in a foreign country; (e) the possibility that the person has facilitated, is facilitating, or will facilitate, the engagement in a hostile activity in a foreign country; (f) the possibility that the person has contravened, is contravening, or will contravene, the control order; (g) whether allowing one or more constables to conduct an ordinary search or a frisk search of the person, and exercise the monitoring powers in relation to the person and the powers set out in section 3ZZLC in relation to the person or a recently used conveyance, would be likely to have the least interference with any person's liberty and privacy that is necessary in the circumstances. Content of warrant (5) The warrant must: (a) state the name of the person; and (b) state that the warrant is issued under this section; and (c) state the purpose or purposes for which the warrant is issued; and (d) authorise a constable (whether or not named in the warrant) from time to time while the warrant remains in force: (i) to conduct an ordinary search or a frisk search of the person; and (ii) to exercise the monitoring powers in relation to the person; and (iii) to exercise the powers set out in section 3ZZLC in relation to the person or a recently used conveyance; and (e) state whether the search is authorised to be carried out at any time of the day or during specified hours of the day; and (f) specify the time at which the warrant expires (see subsection (7)); and (g) state that a person who is not a constable may be authorised under section 3ZZLD to assist in executing the warrant; and (h) state the name of the person to whom the relevant control order relates; and (i) state that the control order is in force; and (j) state whether the control order is an interim control order or a confirmed control order; and (k) specify the date the control order was made; and (l) specify the court that made the control order; and (m) if the control order is an interim control order—specify the date on which the order was served on the person; and (n) if the control order is a confirmed control order—specify the end of the period during which the order is in force; and (o) if the warrant is issued for the purposes of determining whether the control order has been, or is being, complied with—specify the obligations, prohibitions and restrictions that are imposed by the order. (6) To avoid doubt, paragraph (5)(c) does not require the purpose or purposes for which the warrant is issued to be specified in the warrant if disclosure of that purpose, or those purposes, is likely to prejudice national security (within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004). (7) The time stated in the warrant under paragraph (5)(f) as the time at which the warrant expires must be a time that is not later than the end of the seventh day after the day on which the warrant is issued. Example: If a warrant is issued at 3 pm on a Monday, the expiry time specified must not be later than midnight on Monday in the following week. (8) Paragraph (5)(f) and subsection (7) do not prevent the issue of successive monitoring warrants in relation to the same person. 3ZZOC Restrictions on personal searches A monitoring warrant cannot authorise a strip search or a search of a person's body cavities. 3ZZOD Monitoring warrant must not be executed if the relevant control order is revoked etc. (1) If: (a) a monitoring warrant was issued on the basis that a control order was in force in relation to a person; and (b) any of the following happens: (i) the control order is revoked; (ii) a court declares the control order to be void; (iii) a court varies the control order by removing one or more obligations, prohibitions or restrictions imposed on the person by the control order; a constable must not: (c) execute the warrant; or (d) exercise a power under Division 2 or 3, if the exercise of the power is consequential on the warrant. Evidence (2) A thing seized in breach of subsection (1) is not admissible in evidence in criminal proceedings other than proceedings covered by paragraph 3ZQU(1)(j). (3) Information obtained in breach of subsection (1) is not admissible in evidence in criminal proceedings other than proceedings covered by paragraph 3ZQU(1)(j). (4) A document obtained in breach of subsection (1) is not admissible in evidence in criminal proceedings other than proceedings covered by paragraph 3ZQU(1)(j). Division 6—Monitoring warrants by telephone or other electronic means 3ZZPA Monitoring warrants by telephone or other electronic means (1) A constable may make an application to an issuing officer for a monitoring warrant by telephone, telex, fax or other electronic means: (a) in an urgent case; or (b) if the delay that would occur if an application were made in person would frustrate the effective execution of the warrant. (2) The issuing officer: (a) may require communication by voice to the extent that it is practicable in the circumstances; and (b) may make a recording of the whole or any part of any such communication by voice. (3) An application under this section must include all information required to be provided in an ordinary application for a monitoring warrant, but the application may, if necessary, be made before the information is sworn. (4) If an application is made to an issuing officer under this section and the issuing officer, after considering the information and having received and considered such further information (if any) as the issuing officer required, is satisfied that: (a) a monitoring warrant in the terms of the application should be issued urgently; or (b) the delay that would occur if an application were made in person would frustrate the effective execution of the warrant; the issuing officer may complete and sign the same form of warrant that would be issued under section 3ZZOA or 3ZZOB, as the case requires. (5) If the issuing officer decides to issue the monitoring warrant, the issuing officer is to inform the applicant, by telephone, telex, fax or other electronic means, of the terms of the warrant and the day on which, and the time at which, it was signed. (6) The applicant must then complete a form of monitoring warrant in terms substantially corresponding to those given by the issuing officer, stating on the form the name of the issuing officer and the day on which, and the time at which, the warrant was signed. (7) The applicant must, not later than the day after the day of expiry of the warrant or the day after the day on which the warrant was executed, whichever is the earlier, give or transmit to the issuing officer the form of warrant completed by the applicant and, if the information referred to in subsection (3) was not sworn, that information duly sworn. (8) The issuing officer is to attach to the documents provided under subsection (7) the form of warrant completed by the issuing officer. (9) If: (a) it is material, in any proceedings, for a court to be satisfied that the exercise o