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Justice Legislation Amendment (Terrorism) Act 2018

No. 32 of 2018

TABLE OF PROVISIONSSection Page

Part 1—Preliminary 1

1 Purposes 12 Commencement 4

Part 2—Amendment of Terrorism (Community Protection) Act 2003 5

Division 1—Preventative police detention 5

3 Purposes 54 Definitions 55 New Division heading inserted into Part 1A 96 Application of Division 1 of Part 1A 97 New Division 2 of Part 1A inserted 108 New Part 1B inserted 169 New Part 2AA inserted 1910 Section 13B repealed 10111 Application for preventative detention order 10112 Form and content of application for preventative detention

order 10113 Preventative detention orders 10314 Nature of preventative detention order 10515 Duration of preventative detention orders 10716 When order starts and ceases to have effect 10717 No preventative detention order in relation to person under

14 years of age 10718 Restrictions on multiple preventative detention orders 10819 Basis for applying for, and making, prohibited contact order 10820 Power to detain person under preventative detention order 10921 Endorsement of order with date and time person taken into

custody or detained 10922 Arrangement for detainee to be held in prison 10923 Arrangement for detainee to be held in youth justice facility 11024 New sections 13WB to 13WD inserted 11025 Effect of preventative detention order to be explained to

person detained 11226 Copy of preventative detention order 114

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27 Detention of persons under 18 11428 Restriction on contact with other people 11429 Contacting family members etc. 11530 Contacting lawyer 11531 New sections 13ZFA to 13ZFC inserted 11632 Contacting family members etc. 11733 Monitoring contact under section 13ZD or 13ZF 11734 Special contact rules for person under 18 or incapable of

managing own affairs 11835 Entitlement to contact subject to prohibited contact order 11836 Disclosure offences 11837 Questioning of person prohibited while person is detained 11938 New Division 5A of Part 2A inserted 11939 Section 13ZU repealed 13640 New Part 8 inserted 137

Division 2—Requirements for granting preventative detention orders or authorising special police powers 137

41 Objects of Part 2A 13742 Application for preventative detention order 13743 Preventative detention orders 13844 Authorisation of special powers to prevent, or reduce the

impact of, a terrorist act 138

Division 3—Special police powers 138

45 Definitions 13846 Authorisation of special powers to prevent, or reduce the

impact of, a terrorist act 13847 Authorisation of special powers relating to the investigation

of, or recovery from, a terrorist act 14048 How authorisation may be given 14149 Duration of authorisation 14150 New sections 21IA and 21IB inserted 14251 Exercise of special powers by police officers and protective

services officers 14352 Power to obtain disclosure of identity 14453 Power to search persons 14454 Power to search vehicles 14455 Power to move vehicles 14456 Power to enter and search premises 14457 New sections 21SA, 21SB and 21SC inserted 14558 Cordon around target area 14859 Power to seize and detain things 14860 Use of force generally 14861 Offence to obstruct or hinder search or other powers 14962 Supplying police officer's or protective services officer's

details and other information 149

63 Schedule 1—Conduct of personal searches under Part 3A 149

Division 4—Protection of counter-terrorism intelligence 150

64 Definitions 15065 Application of Part 1A 15166 Preventative detention orders 15267 Extension of preventative detention order 15268 Basis for applying for, and making, prohibited contact order 15269 Application by police for revocation or variation of

preventative detention order or prohibited contact order 15370 Nature of proceedings 15371 Part 5 substituted 153

Division 5—Oversight by the Victorian Inspectorate and annual reporting 170

72 Definitions 17073 Report to the Victorian Inspectorate 17174 No publication of report of proceeding 17175 Section 13 repealed 17176 Section 13ZR repealed 17177 Section 21M repealed 17178 New Parts 6 and 6A inserted 172

Division 6—Other amendments 184

79 Department references changed 184

Part 3—Amendment of Bail Act 1977 186

80 Definitions 18681 Surrounding circumstances 18782 New sections 3AAB and 3AAC inserted 18983 Section 3D substituted 19184 New section 4AA inserted 19485 Step 1—exceptional circumstances test 19686 Section 4B repealed 19787 Step 1—show compelling reason test 19788 Step 2—unacceptable risk test 19789 New section 8AA inserted 19890 Power of police officer, sheriff or authorised person to grant or

refuse bail 20091 Power of bail justice to grant or refuse bail 20192 New section 10B inserted 20293 Power of court to grant or refuse bail 20294 Section 12A substituted 20395 Treason, murder, certain other offences 20396 New section 13AA inserted 20497 Schedule 1 amended 20598 Schedule 2 amended 205

99 Transitional provisions 205

Part 4—Amendment of Children, Youth and Families Act 2005 207

Division 1—Terrorism risk information 207

100 Definitions 207101 New sections 3A and 3B inserted 209102 New Division 1AA inserted in Part 5.6 211103 New Part 5.10 inserted 212

Division 2—Parole 213

104 Meaning of terrorism risk information 213105 New sections 457A and 457B inserted 213106 Release on parole from youth residential centre or youth

justice centre 214107 Cancellation of parole 216108 New sections 460A, 460B and 460C inserted 216109 Department of Justice and Regulation may disclose terrorism

risk information 219

Division 3—Transitional provisions 219

110 New section 630 inserted 219

Division 4—Miscellaneous 220

111 Statute law revision 220112 Definitions 220113 Children, Youth and Families Act 2005—consequential

amendment related to police detention decisions 221

Part 5—Amendment of Corrections Act 1986 222

Division 1—Information sharing 222

114 Definitions—Part 9E 222115 Authorisation to use or disclose information 222116 Authorisation to disclose information given to Adult Parole

Board 223117 Schedule 5 inserted 223

Division 2—Parole 231

118 Definitions 231119 New sections 3A and 3B inserted 233120 Secretary to supply assistance to Board 235121 Release on parole after service of non-parole period 235122 Parole decisions made by Serious Violent Offender or Sexual

Offender Parole Division 236123 New section 74AAC inserted 239124 Cancellation of parole 241

125 Revocation of cancellation 245126 Schedule 4 repealed 246

Division 3—Police detention decision amendments 246

127 When does legal custody of the Secretary cease? 246128 When is a person in the legal custody of the Chief

Commissioner of Police? 246129 When does legal custody of the Chief Commissioner of Police

cease? 247

Division 4—Transitional provisions 248

130 New section 129 inserted 248

Part 6—Amendment of Crimes Act 1958 250

131 Use of force to prevent the commission of an indictable offence 250

Part 7—Amendment of other Acts 251

Division 1—Serious youth offences 251

132 Criminal Procedure Act 2009—Definitions 251133 Sentencing Act 1991—Definitions 251

Division 2—Annual reporting by Commission for Children and Young People 252

134 Commission for Children and Young People Act 2012—New section 23A inserted 252

Part 8—Repeal of amending Act 253

135 Repeal of amending Act 253═════════════

Endnotes 254

1 General information 254

Justice Legislation Amendment (Terrorism) Act 2018†

No. 32 of 2018

[Assented to 7 August 2018]

The Parliament of Victoria enacts:

Part 1—Preliminary1 Purposes

The main purposes of this Act are—

(a) to amend the Terrorism (Community Protection) Act 2003—

(i) to provide for new powers and obligations relating to the detention of persons pursuant to police detention decisions and preventative detention

Victoria

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orders for the prevention of terrorist acts; and

(ii) to amend the requirements for granting of preventative detention orders and authorising special police powers; and

(iii) to make other changes in relation to special powers; and

(iv) to provide stronger protection for counter-terrorism intelligence; and

(v) to provide that the Victorian Inspectorate must oversee the use of covert search warrant powers, the making and carrying out of police detention decisions and the use of special police powers; and

(b) to amend the Bail Act 1977—

(i) to provide for the use of terrorism risk information by a court that is considering whether to grant bail; and

(ii) to provide different procedures relating to the bail of a person in circumstances related to terrorism; and

(c) to amend the Children, Youth and Families Act 2005—

(i) in relation to the use and disclosure of terrorism risk information by the Department of Justice and Regulation and the Youth Parole Board; and

(ii) to provide different procedures relating to the parole of a person in circumstances related to terrorism; and

(iii) to make further provision in relation to the transfer of custody of children detained under Part 2AA of the

Section Page

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Terrorism (Community Protection) Act 2003, and under preventative detention orders under that Act, between the Chief Commissioner of Police and the Secretary to the Department of Justice and Regulation; and

(d) to amend the Corrections Act 1986—

(i) in relation to the sharing of information under Part 9E of that Act; and

(ii) to provide different procedures relating to the parole of a person in circumstances related to terrorism; and

(iii) to make further provision in relation to the transfer of custody of children detained under Part 2AA of the Terrorism (Community Protection) Act 2003, and adults and children detained under preventative detention orders under that Act, between the Chief Commissioner of Police and the Secretary to the Department of Justice and Regulation; and

(e) to amend the Crimes Act 1958 in relation to the use of force to prevent the commission of an indictable offence; and

(f) to amend the Criminal Procedure Act 2009 and the Sentencing Act 1991 to ensure that terrorism and foreign incursion offences are referred to consistently; and

(g) to amend the Commission for Children and Young People Act 2012 to require the Commission to report annually on its monitoring role in relation to the detention of children under Part 2AA of the Terrorism (Community Protection) Act 2003.

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2 Commencement

(1) Part 1, Division 1 of Part 4, Division 1 of Part 5 and Part 6 come into operation on the day after the day on which this Act receives the Royal Assent.

(2) Parts 2 and 3, section 113, Division 3 of Part 5 and Division 2 of Part 7 come into operation on 1 October 2018.

(3) Subject to subsection (4), the remaining provisions of this Act come into operation on a day or days to be proclaimed.

(4) If a provision referred to in subsection (3) does not come into operation before 1 May 2019, it comes into operation on that day.

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Part 2—Amendment of Terrorism (Community Protection) Act 2003

Division 1—Preventative police detention3 Purposes

After section 1(b) of the Terrorism (Community Protection) Act 2003 insert—

"(baa) to provide for the making of police detention decisions; and".

4 Definitions

(1) In section 3 of the Terrorism (Community Protection) Act 2003 insert the following definitions—

"AFP member has the same meaning as in Part 5.3 of the Criminal Code of the Commonwealth;

authorised police officer means a police officer appointed by the Chief Commissioner under subsection (2);

child means a person under 18 years of age;

Commission for Children and Young People means the Commission established by section 6 of the Commission for Children and Young People Act 2012;

Commonwealth control order has the same meaning as control order has in Part 5.3 of the Criminal Code of the Commonwealth;

corresponding preventative detention law means—

(a) Division 105 of the Criminal Code of the Commonwealth; or


Justice Legislation Amendment (Terrorism) Act 2018No. 32 of 2018

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(b) a law of another State or of a Territory, or particular provisions of a law of another State or of a Territory, that—

(i) corresponds or correspond to this Part; or

(ii) is or are declared by the regulations to correspond to this Part;

family member of a person means—

(a) the person's spouse, de facto spouse or same-sex partner; or

(b) a parent, step-parent or grandparent of the person; or

(c) a child, step-child or grandchild of the person; or

(d) a brother, sister, step-brother or step-sister of the person; or

(e) a guardian or carer of the person;

IBAC has the same meaning as in the Independent Broad-based Anti-corruption Commission Act 2011;

IBAC Commissioner means the Commissioner within the meaning of the Independent Broad-based Anti-corruption Commission Act 2011;

identification material, in relation to a person, means—

(a) samples taken from a part of the person's body from which a DNA profile may be derived; or

(b) prints of the person's hands, fingers, feet or toes; or

(c) recordings of the person's voice, or



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(d) samples of the person's handwriting; or

(e) photographs (including video recordings other than video recordings made in the ordinary course of operation of a security camera fitted at, or in the immediate vicinity of, a place where the person is being detained under Part 2AA or a preventative detention order) of the person;

interim preventative detention order means an interim preventative detention order made by the Supreme Court under section 13E;

lawyer means an Australian lawyer;

legal advice has the same meaning as in the Legal Aid Act 1978;

maximum police detention period means—

(a) for an adult—a period of 4 days;

(b) for a child—a period of 36 hours;Note

See also sections 13AH and 13G.

nominated senior police officer means a police officer appointed under section 13AZZJ;

periodic review means a review under section 13AZZN;

police detention decision—see section 13AC;

police gaol has the same meaning as in the Corrections Act 1986;

prescribed authority has the same meaning as in Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979 of the Commonwealth;



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preventative detention order means an order made under section 13E, as varied under section 13N or 13O, and includes an interim preventative detention order;

prison has the same meaning as in the Corrections Act 1986;

prohibited contact order means an order made under section 13L or 13M, as varied under section 13N or 13O;

Public Interest Monitor means—

(a) the Principal Public Interest Monitor appointed under section 6 of the Public Interest Monitor Act 2011; or

(b) a Deputy Public Interest Monitor appointed under section 7 of the Public Interest Monitor Act 2011;

questioning limitation condition—see section 13E(2A)(b);

questioning prohibition condition—see section 13E(2A)(a);

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;

Victoria Legal Aid means Victoria Legal Aid established under section 3 of the Legal Aid Act 1978;

Victorian Inspectorate has the same meaning as in the Victorian Inspectorate Act 2011;



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youth justice facility means a service established under section 478 of the Children, Youth and Families Act 2005.".

(2) In section 3 of the Terrorism (Community Protection) Act 2003, in the definition of Victoria Police, for "2013." substitute "2013;".

(3) At the end of section 3 of the Terrorism (Community Protection) Act 2003 insert—

"(2) The Chief Commissioner may appoint, in writing, police officers, or a class or classes of police officers, to be authorised police officers for the purpose of making—

(a) police detention decisions; and

(b) applications under sections 13C, 13I and 13M.".

5 New Division heading inserted into Part 1A

After the heading to Part 1A of the Terrorism (Community Protection) Act 2003 insert—

"Division 1—Role in relation to order and warrant applications".

6 Application of Division 1 of Part 1A

(1) In the heading to section 4C of the Terrorism (Community Protection) Act 2003, for "Part 1A" substitute "this Division".

(2) In sections 4C and 4D(3) of the Terrorism (Community Protection) Act 2003, for "Part" substitute "Division".



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7 New Division 2 of Part 1A inserted

After section 4F of the Terrorism (Community Protection) Act 2003 insert—

"Division 2—Role in relation to preventative police detention

4G Authorised police officer to notify Public Interest Monitor about certain things relating to police detention decisions

(1) An authorised police officer must notify a Public Interest Monitor of the things set out in column 2 of the Table within the time specified in column 3 of the Table opposite that thing.

TableColumn 1

Item

Column 2Thing to be notified to a Public Interest Monitor

Column 3

When notification must be given

1 The making of a police detention decision

As soon as practicable after the police detention decision is made

2 The date and time a person to whom a police detention decision applies is taken into custody and detained under Part 2AA

As soon as practicable after the person is taken into custody (but no later than 2 hours after the person is taken into custody)



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Column 1

Item

Column 2Thing to be notified to a Public Interest Monitor

Column 3

When notification must be given

3 The name and contact details of the nominated senior police officer in relation to a person to whom a police detention decision applies

As soon as practicable after the police detention decision is made

4 A police detention decision ceasing to have effect under section 13AF(2)(a)

As soon as practicable after the police detention decision ceases to have effect

(2) A notification under subsection (1) must be in accordance with the regulations.

Note

See also section 4K(3)(b).

4H Nominated senior police officer to notify Public Interest Monitor about certain matters relating to police detention decisions

(1) A nominated senior police officer must notify a Public Interest Monitor of—

(a) when a periodic review is to be conducted as soon as practicable after deciding when to conduct it; andNote

See also section 13AZZN.



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(b) the date and time the detention under Part 2AA of a person to whom a police detention decision relates ends as soon as practicable after the end of that detention.

(2) A notification under subsection (1) must be in accordance with the regulations.

Note

See also section 4K(3)(b) and Division 9 of Part 2AA.

4I Full disclosure to a Public Interest Monitor

(1) The following persons must fully disclose to a Public Interest Monitor all matters of which they are aware that are adverse to the making of a police detention decision or the conduct of a periodic review—

(a) the authorised police officer who made the police detention decision;

(b) the nominated senior police officer in relation to a periodic review they conduct;

(c) a police officer exercising powers or performing duties under Part 2AA.

(2) An authorised police officer, a nominated senior police officer or a police officer exercising powers or performing duties under Part 2AA must not knowingly or recklessly fail to comply with subsection (1).

Penalty: Level 9 imprisonment (6 months maximum) or a level 9 fine (60 penalty units maximum) or both.



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4J Secrecy obligations do not apply

An obligation to maintain secrecy in relation to, or that otherwise restricts, the provision of information to a Public Interest Monitor, whether imposed under an Act or by rule of law, does not apply to the provision of information under this Division.

4K Role of Public Interest Monitor in relation to periodic reviews

(1) A Public Interest Monitor is entitled—

(a) to test the content and sufficiency of the information to be relied on for the purposes of conducting a periodic review; and

(b) for the purpose of testing the content and sufficiency of the information to be relied on for the purposes of conducting a periodic review—

(i) to ask questions of any of the following persons—

(A) the authorised police officer who made the police detention decision;

(B) the nominated senior police officer in relationto a periodic review they conduct;

(C) a police officer exercising powers or performing duties under Part 2AA in relation to a person detained under that Part; and



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(ii) to make submissions to the nominated senior police officer in relation to the conduct of a periodic review.

Note

A nominated senior police officer conducts periodic reviews under section 13AZZN.

(2) Without limiting subsection (1), a Public Interest Monitor is entitled to make submissions to the nominated senior police officer in person or by telephone or electronic communication or any other reasonable way.

(3) If a Public Interest Monitor is not reasonably able to be contacted before the nominated senior police officer conducts a periodic review—

(a) the nominated senior police officer may conduct the periodic review, without a Public Interest Monitor being notified; and

(b) a Public Interest Monitor must—

(i) be notified as soon as practicable after the completion of the periodic review; and

(ii) be given any information requested by a Public Interest Monitor that the Public Interest Monitor would have been entitled to obtain for the purposes of exercising a power under subsection (1) or (2).



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4L Public Interest Monitor to be given written record of police detention decision

An authorised police officer must ensure that a copy of the written record of the police detention decision made under section 13AE is given to a Public Interest Monitor as soon as practicable after they make the decision.

4M Public Interest Monitor to be given access to documents related to police detention decisions and periodic reviews

For the purposes of performing a function or exercising a power under section 4K, a Public Interest Monitor may have, and must be given, access to any document or information relating to a police detention decision or the conduct of a periodic review kept by—

(a) the authorised police officer who made the police detention decision; or

(b) the nominated senior police officer who conducts the periodic review.

4N Return of documents

(1) A Public Interest Monitor must return to an appropriate person any documents given to the Public Interest Monitor under this Division—

(a) if detention of the person to whom the police detention decision relates ends—as soon as practicable after the Public Interest Monitor is notified of the end of that detention; or



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(b) if the police detention decision ceases to have effect under section 13AF(2)(a)—as soon as practicable after the Public Interest Monitor is notified of the decision ceasing to have effect.

Note

See also section 4G or 4H.

(2) In this section—

appropriate person means—

(a) in the case of a document given to the Public Interest Monitor relating to a police detention decision—the authorised police officer who made the decision; and

(b) in the case of a document given to the Public Interest Monitor relating to the conduct of a periodic review—the nominated senior police officer who conducted the review.".

8 New Part 1B inserted

After Part 1A of the Terrorism (Community Protection) Act 2003 insert—

"Part 1B—Role of the Commission for Children and Young People

4O Functions of Commission for Children and Young People in relation to detention of children

In addition to any other function conferred on the Commission for Children and Young People under this Part or Part 2AA or 2A,



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the Commission for Children and Young People has the following functions in relation to Part 2AA or 2A—

(a) to monitor the treatment of a child while being detained under Part 2AA or under a preventative detention order;

(b) to promote the interests of a child detained under Part 2AA or under a preventative detention order;

(c) to access any document or information in accordance with section 4Q;

(d) to provide advice to the Attorney-General, the Minister administering the Commission for Children and Young People Act 2012 or the Chief Commissioner about a child's treatment while in detention under Part 2AA or under a preventative detention order;

(e) any other function that is prescribed.

4P Access to children in detention for the purpose of monitoring their treatment

For the purposes of performing any function or exercising any power under or in relation to this Part, Part 2AA or 2A, the Commission for Children and Young People must be given access to a child that is in detention under Part 2AA or under a preventative detention order.

Note

See also section 4R.

4Q Access to documents and information

(1) For the purposes of performing any function or exercising any power under or in relation to this Part, Part 2AA or 2A, the Commission for Children and Young People



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may have, and must be given, access to any document or information relating to a child's treatment while in detention under Part 2AA or under a preventative detention order that is kept by any of the following people—

(a) the Chief Commissioner;

(b) the Secretary to the Department of Justice and Regulation.


document includes an audio recording or audiovisual recording referred to in Division 6 of Part 2AA or Division 5A of Part 2A.

Note

See also section 4R.

4R Assistance to be given to Commission for Children and Young People for performance of its functions and exercise of powers

The Chief Commissioner and the Secretary to the Department of Justice and Regulation must ensure that the Commission for Children and Young People is given any assistance in connection with the reasonable performance of the Commission's functions, or the reasonable exercise of the Commission's powers, under or in relation to this Part, Part 2AA or 2A that the Commission reasonably requires.".



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9 New Part 2AA inserted

After Part 2 of the Terrorism (Community Protection) Act 2003 insert—

"Part 2AA—Preventative police detention

Division 1—Preliminary13AA Object of Part

The object of this Part is to allow for the taking into custody and detention of an adult for a period not exceeding 4 days, or a child for a period not exceeding 36 hours, in order to—

(a) prevent a terrorist act that is capable of being carried out, and could occur, within the next 14 days; or

(b) preserve evidence of, or relating to, a recent terrorist act.

Division 2—Police detention decisions13AB What is a police detention decision?

A police detention decision is a decision made in relation to a person that authorises—

(a) the taking into custody of the person (unless the person is already being detained under a preventative detention order or an order for the person's detention made under a corresponding preventative detention law); and

(b) subject to this Part, the detention of the person under this Part for a period



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not exceeding the maximum police detention period which—

(i) starts when the person is first taken into custody under section 13AH(2)(a) or detained under section 13AH(2)(b); and

(ii) ends under Division 9.

13AC Authorised police officer may make police detention decision

(1) Subject to this Division, an authorised police officer may make a police detention decision in relation to a person who is 14 years old or older if—

(a) the authorised police officer is satisfied that—

(i) there are reasonable grounds to suspect that the person—

(A) will engage in a terrorist act; or

(B) possesses or has under the person's control (whether solely or jointly with any other person) a thing that is connected with the preparation for, or the engagement of a person in, a terrorist act; or

(C) has done an act in preparation for, or planning, a terrorist act; and

(ii) making the decision would substantially assist in preventing a terrorist act occurring; and



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(iii) detaining the person is reasonably necessary for the purpose referred to in subparagraph (ii); or

(b) the authorised police officer is satisfied that—

(i) a terrorist act has occurred within the last 28 days; and

(ii) it is necessary to detain the person to preserve evidence of, or relating to, the terrorist act; and

(iii) detaining the person is reasonably necessary for the purpose referred to in subparagraph (ii).

(2) A terrorist act referred to in subsection (1)(a) must be capable of being carried out, and could occur, within the next 14 days.

(3) A police detention decision must not be made on the same basis as a previous police detention decision unless the previous police detention decision ceased to have effect under section 13AF(2)(a).

(4) For the purposes of subsection (3), a police detention decision is made on the same basis as a previous police detention decision if—

(a) in the case of a decision made on the basis of preventing a terrorist act from occurring, that decision and the previous decision relate to the same terrorist act; and

(b) in the case of a decision made on the basis of preserving evidence of, or relating to, a terrorist act, that decision and the previous decision relate to the same terrorist act.



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13AD Nature of police detention decisions in relation to children—detention in youth justice facilities

(1) An authorised police officer who makes a police detention decision in relation to a child must, as part of that decision, direct that the child be detained in a youth justice facility unless the officer is satisfied that it is reasonably necessary for the child to be detained at a place other than a youth justice facility.

(2) For the purposes of subsection (1), the authorised police officer must have regard to the following—

(a) the child's age and vulnerability;

(b) the likely impact that detention in a place other than a youth justice facility will have on the child;

(c) the grounds on which the police detention decision is made;

(d) the risk posed by the child to—

(i) the national or international security of Australia; or

(ii) other persons detained in a youth justice facility; or

(iii) the good order and safe operation of a youth justice facility;

(e) the availability of a place in a youth justice facility for the child to be detained in compliance with this Part.

Note

See also section 13AR.



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13AE Recording of police detention decision

(1) An authorised police officer who makes a police detention decision must make, or cause to be made, a written record of the decision.

(2) The record must set out—

(a) the facts and other grounds which the authorised police officer considered in making the police detention decision; and

(b) the information (if any) that the authorised police officer has about the person's age and capacity to manage their affairs; and

(c) the outcomes and particulars of any previous police detention decisions in relation to the person; and

(d) the outcomes and particulars of any previous applications for preventative detention orders in relation to the person; and

(e) the information (if any) that the authorised police officer has about the following—

(i) the outcomes and particularsof all previous requests for Commonwealth control orders (including the outcomes of the hearings to confirm the orders) in relation to the person;

(ii) the outcomes and particularsof all previous applications for variations of Commonwealth



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control orders made in relation to the person;

(iii) the outcomes of all previous applications for revocations of Commonwealth control orders made in relation to the person; and

(f) if the police detention decision relates to a child, whether the child is to be detained under this Part in a youth justice facility; andNote

See also section 13AD.

(g) the information (if any) that the authorised police officer has about any periods for which the person has been detained under an order made under a corresponding preventative detention law; and

(h) a summary of the grounds on which the police detention decision was made.

(3) To avoid doubt, subsection (2)(h) does not require counter-terrorism intelligence to be included in the summary.

(4) The information in the record must be sworn or affirmed by the authorised police officer.

13AF When a police detention decision starts and ceases to have effect

(1) A police detention decision in relation to a person starts to have effect when it is made.Note

When a police detention decision starts to have effect it authorises the person to be taken into custody and detained under this Part (see section 13AB). The period for which the person may be detained only starts to run when the person is first taken into



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custody or detained under this Part (see section 13AH).

(2) A police detention decision in relation to a person ceases to have effect—

(a) at the end of the period of 48 hours after the decision is made if the person has not been taken into custody under the order within that period; or

(b) when the person's detention under this Part ends under Division 9.

13AG Detained persons under 14 years to be released without delay

(1) This section applies if—

(a) a person is being detained under this Part pursuant to a police detention decision or a purported police detention decision; and

(b) the police officer who is detaining the person is satisfied on reasonable grounds that the person is under 14 years of age.

(2) The police officer must release the person or arrange in writing for the person's release without delay from detention under this Part.

Division 3—Carrying out police detention decisions

13AH Power to detain person under authority of police detention decision

(1) This section applies if a police detention decision is made in relation to a person.

(2) While the police detention decision is in effect in relation to a person—



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(a) any police officer may take the person into custody; andNote

See also section 6D(2AA) of the Corrections Act 1986.

(b) any police officer may detain the person.

(3) A police officer may, for the purpose of taking a person into custody under a police detention decision or preventing the person from escaping from detention under this Part, exercise any of the powers that the officer would have if the officer were apprehending the person under a belief on reasonable grounds that the person—

(a) had committed an indictable offence in Victoria; or

(b) was escaping from legal custody.

(4) Subsection (3) does not apply to the extent to which particular powers are provided for in this Part.

13AI Person must be informed of detention when taken into custody

At the time the police officer is taking the person into custody under section 13AH, the police officer must inform the person that they are being taken into custody for the purposes of detention under this Part.

13AJ Endorsement of record with date and time person taken into custody or detained

As soon as practicable after a person is first taken into custody or detained under section 13AH, the police officer who is detaining the



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person under that section must endorse on the record of the police detention decision authorising that first taking into custody or detention—

(a) the date on which, and time at which, the person is first taken into custody or detained; and

(b) particulars of where the person is being detained.

13AK Summary explaining police detention decision to be given to detained person

(1) As soon as practicable after a person is first taken into custody or detained under section 13AH, the police officer who is detaining the person under that section must give the person a written summary of the grounds on which the police detention decision was made.Note

A contravention of this subsection may be an offence under section 13AZZX.

(2) To avoid doubt, subsection (1) does not require counter-terrorism intelligence to be included in the summary.

(3) Despite section 13AH(3), when a police officer takes a person into custody, the police officer does not need to—

(a) have a copy of the record of the police detention decision or the summary mentioned in subsection (1) with them; or

(b) produce a copy of the record or summary to the person being taken into custody.



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13AL Summary explaining police detention decision to be given to detained person's lawyer

(1) A person who is being detained under section 13AH may request a police officer who is detaining them to arrange for a copy of the summary mentioned in section 13AK(1) to be given to a lawyer acting for the person in relation to the detention.

(2) The police officer must make arrangements for a copy of the summary to be given to the lawyer as soon as practicable after the request is made.Note


(3) Without limiting subsection (2), the copy of the summary may be sent to the lawyer by electronic communication.

(4) To avoid doubt, subsection (2) does not entitle the lawyer to be given a copy of, or see, a document other than the summary.

13AM Compliance with section 13AK or 13AL not required if impractical because of actions of detained person

Section 13AK or 13AL does not apply if the actions of the person being detained under section 13AH make it impracticable for the police officer to comply with either section.

13AN Lawfulness of person's detention not affected by non-compliance with section 13AK or 13AL

The lawfulness of a person's detention under section 13AH is not affected by a failure to comply with section 13AK or 13AL.



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13AO Requirement to provide name etc.

(1) This section applies if a police officer believes on reasonable grounds that a person whose name or address is, or whose name and address are, unknown to the police officer may be able to assist the police officer in executing a power under section 13AH.

(2) The police officer may request the person to provide their name or address, or name and address, to the police officer.

(3) A person commits an offence if—

(a) a police officer—

(i) makes a request of a person under subsection (2); and

(ii) informs the person of the reason for the request; and

(iii) if the police officer is not in uniform—shows the person evidence that they are a police officer; and

(iv) complies with subsection (5) if the person makes a request under that subsection; and

(b) the person—

(i) refuses or fails to comply with the request; or

(ii) gives a name or address that is false in a material particular.

Penalty: 20 penalty units.

(4) Subsection (3) does not apply if the person has a reasonable excuse.



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(5) If a police officer who makes a request of a person under subsection (2) is requested by the person to provide to the person any of the following—

(a) their name;

(b) the address of their place of duty;

(c) their identification number if they have an identification number;

(d) their rank if they do not have an identification number—

the police officer must not—

(e) refuse or fail to comply with the request; or

(f) give a name, address, number or rank that is false in a material particular.

Penalty: 5 penalty units.

(6) Subsection (5) does not apply if the police officer has a reasonable excuse.

13AP Power to enter premises for purpose of searching for, or taking into custody, a person


(a) a police detention decision is in effect in relation to a person; and

(b) a police officer believes on reasonable grounds that the person is on any premises.

(2) The police officer may enter the premises, using such force as is necessary and reasonable in the circumstances and with such assistance from other police officers as is necessary, at any time of the day or night for the purpose of—



30

(a) searching the premises for the person; or

(b) taking the person into custody.

(3) A police officer must not enter any premises that are used for residential purposes at any time during the period commencing at 9 p.m. on a day and ending at 6 a.m. on the following day unless the police officer believes on reasonable grounds that—

(a) it would not be practicable to take the person into custody, either at those premises or elsewhere, at another time; or

(b) it is necessary to do so in order to prevent the concealment, loss or destruction of evidence of, or relating to, a terrorist act.

13AQ Power to conduct search of a person taken into custody under this Part

(1) This section applies if a police officer who takes a person into custody under section 13AH, or who is present when the person is taken into custody, suspects on reasonable grounds—

(a) that it is prudent to conduct a search of the person in order to ascertain whether the person is carrying any seizable items; or

(b) that the person is carrying—

(i) evidence of, or relating to, a terrorist act; or

(ii) a seizable item.



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(2) The police officer may—

(a) conduct a search of the person in the prescribed manner at, or soon after, the time when the person is taken into custody; and

(b) seize any such thing found as a result of the search.

(3) Any thing seized under subsection (2) must be dealt with in accordance with the regulations.

13AR Detention of children in a youth justice facility

(1) This section applies if a police detention decision is made in relation to a child.

(2) If the police detention decision provides that the child must be detained under this Part in a youth justice facility, the police officer who is detaining the child must request the Secretary to the Department of Justice and Regulation to authorise the detention of that child in a youth justice facility.Note

See also section 13AD.

(3) In all other cases, the police officer who is detaining the child under this Part may request the Secretary to the Department of Justice and Regulation to authorise the detention of that child in a youth justice facility.

(4) A request under subsection (2) or (3) must be accompanied by a written record that—

(a) specifies that a police detention decision has been made in relation to the child; and



32

(b) sets out—

(i) the date on which, and time at which, the child was first taken into custody or detained under this Part; and

(ii) whether any contact with the child has been prohibited under section 13AZZB and the terms of any prohibition.

(5) The information in the record under subsection (4) must be sworn or affirmed by the authorised police officer.

(6) If requested to do so under subsection (2) or (3), the Secretary to the Department of Justice and Regulation, by instrument, may authorise the detention in a youth justice facility of a child being detained under this Part.

(7) On the giving of an authorisation under subsection (6), a person at a youth justice facility acting under lawful authority on behalf of the Secretary may receive the child into the facility.Note

See also section 483(1) and (1A) of the Children, Youth and Families Act 2005 and section 6E(1)(cab) of the Corrections Act 1986.

(8) If a child is being detained in a youth justice facility under this Part—

(a) the officer in charge of the facility is taken to be authorised to detain the child under this Part at the facility while the police detention decision is in effect in relation to the child; and



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(b) section 13AY applies in relation to the child's detention under this Part at the facility as if—

(i) the officer in charge of that facility; or

(ii) any other person involved in the child's detention at that facility—

were a police officer exercising authority under this Part in relation to the detention of the child; and

(c) the police officer who made the request under subsection (2) or (3) is taken, while the child is detained at the facility, to be the police officer detaining the child for the purposes of Divisions 4, 5 and 7; and

(d) a police officer may at any time enter the facility and visit the child being detained in the facility in connection with the exercise of powers under this Part and the performance of obligations in relation to the child's detention under this Part.

(9) The Secretary to the Department of Justice and Regulation, by instrument, may delegate any function or power of the Secretary under this section (except this power of delegation) to any person, or class of person, employed in the Department of Justice and Regulation under Part 3 of the Public Administration Act 2004.



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13AS Application of Children, Youth and Families Act 2005 to children detained under this Part in a youth justice facility

(1) No provision of the Children, Youth and Families Act 2005 applies in respect of the detention of a child under this Part in a youth justice facility other than the following provisions of that Act—

(a) section 17(1) and, to the extent that it relates to section 597(3) or 597(4), section 17(2);

(b) section 482(1) other than paragraphs (b) to (d);

(c) section 482(2) other than paragraphs (a) and (b);

(d) section 482(3);

(e) section 483(1) and 483(1A);

(f) section 487 other than paragraph (f) to the extent that that paragraph applies to discriminatory treatment that is reasonable and necessary having regard to the nature of the child's detention;

(g) sections 488A to 488G;

(h) section 501;

(i) section 597.

(2) If a provision of the Children, Youth and Families Act 2005 applies (with or without modification) in respect of the detention under this Part of a child in a youth justice facility, any provision of the regulations made under that provision, or under that Act for or with respect to that provision, also applies in respect of that detention with any necessary modifications.



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(3) The Children, Youth and Families Act 2005, in its application in respect of the detention of a child under this Part in a youth justice facility, has effect subject to this Part and, in the event of any inconsistency between that Act and this Part, this Part prevails over that Act.

13AT Transfer of detained child into legal custody of Chief Commissioner for questioning


(a) a child is being detained under this Part in a youth justice facility; and

(b) a police officer wants to question the child under Division 6.

(2) An authorised police officer may request the Secretary to the Department of Justice and Regulation to release the child from detention in the youth justice facility into the custody of a police officer.

(3) A request under subsection (2) must be accompanied by a written record that—

(a) specifies that a police detention decision has been made in relation to the child; and

(b) sets out the date on which, and time at which, the child was first taken into custody or detained under this Part.

(4) The information in the record under subsection (3) must be sworn or affirmed by the authorised police officer.

(5) If requested to do so under subsection (2), the Secretary to the Department of Justice and Regulation, by instrument, may authorise the release of the child from



36

detention in the youth justice facility into the custody of a police officer.

(6) On the giving of an authorisation under subsection (5), a police officer may take physical custody of the child.Note

See also section 483(1) and (1A) of the Children, Youth and Families Act 2005 and section 6D(2AA) of the Corrections Act 1986.

13AU Return of child to youth justice facility at end of questioning

(1) This section applies if a police officer has taken custody of a child under section 13AT(6) for the purpose of questioning that child under Division 6.

(2) At the cessation of the questioning, the police officer who is detaining the child under this Part must deliver the child back to the youth justice facility at which the child was detained at the time of the request under section 13AT(2).Note

See also section 483(1) and (1A) of the Children, Youth and Families Act 2005 and section 6E(1)(cab) of the Corrections Act 1986.

13AV Effect on period of detention of transfers of custody of children for questioning purposes

To avoid doubt, the transfer of the custody of a child under section 13AT or 13AU does not extend the maximum period for which the child may be detained under this Part.



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Division 4—Informing person detained about police detention decision

13AW Effect of police detention decision to be explained to person detained

(1) As soon as practicable after a person is first detained under section 13AH, the police officer who is detaining the person must inform the person of the matters covered by subsection (2).Notes

1 A contravention of this subsection may be an offence under section 13AZZX.

2 A contravention of this section does not affect the lawfulness of the person's detention under this Part (see section 13AX(5)).

(2) The matters covered by this subsection are—

(a) the fact that a police detention decision has been made in relation to the person; and

(b) the reasons for the making of the police detention decision; and

(c) the maximum period for which the person may be detained under this Part; and

(d) the fact that an interim preventative detention order or preventative detention order may be applied for in relation to the person; and

(e) the maximum period for which the person may be detained under a preventative detention order; and

(f) the fact that the person may be questioned by a police officer while in detention under this Part and the



38

person's entitlement to reasonable breaks during questioning; and

(g) the people that the person may contact while being detained under this Part; and

(h) any restrictions that may apply to the people that the person may contact while the person is being detained under this Part; and

(i) the fact that the person's communication with persons referred to in section 13AZQ, and with their lawyer, may be monitored under section 13AZX or 13AZY;

(j) the person's entitlement under section 13AZZL to make representations to the nominated senior police officer in relation to—

(i) the exercise of powers under this Part and the performance of obligations in relation to the detention of a person under this Part; orExample

Powers and obligations of police officers under Division 9.

(ii) the treatment of the person while in detention under this Part; and

(k) any right the person has to complain to the Ombudsman under the Ombudsman Act 1973 or the IBAC under the Independent Broad-based Anti-corruption Commission Act 2011 in relation to—



39

(i) the making of the police detention decision in relation to the person; or


(l) the fact that the person may seek from a court a remedy relating to—

(i) the police detention decision; or


(m) in the case of a child being detained under this Part, the child's entitlement to contact the Commission for Children and Young People under section 13AZS; and

(n) the person's entitlement to contact a lawyer under section 13AZV; and

(o) the person's entitlement to contact a consular office under section 13AZE or 13AZT; and

(p) the person's entitlement to an interpreter under section 13AZB or 13AZD; and

(q) the name and work telephone number of the nominated senior police officer referred to in paragraph (j).

13AX Compliance with obligations to inform

(1) Section 13AW(1) does not apply if the actions of the person being detained under this Part make it impracticable for the police officer to comply with that subsection.



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(2) The police officer detaining the person under this Part complies with section 13AW(1) if the police officer informs the person in substance of the matters covered by section 13AW(2) (even if this is not done in language of a precise or technical nature).

(3) The police officer detaining the person under this Part must arrange for the assistance of an interpreter in complying with section 13AW(1) if the police officer has reasonable grounds to believe that the person is unable, because of inadequate knowledge of the English language or a disability, to communicate with reasonable fluency in that language.

(4) Without limiting subsection (3), the assistance of the interpreter may be provided by telephone.

(5) The lawfulness of a person's detention under this Part is not affected by a failure to comply with section 13AW(1) or subsection (3) of this section.

Division 5—Treatment of person detained

13AY Humane treatment of person being detained

A person being taken into custody, or being detained, under this Part—

(a) must be treated with humanity and with respect for human dignity; and



41

(b) must not be subjected to cruel, inhuman or degrading treatment—

by anyone exercising authority under this Part or implementing or enforcing the police detention decision in relation to the person.

Note

A contravention of this section may be an offence under section 13AZZX.

13AZ Detention of children

(1) Subject to subsection (2), the police officer detaining a child under this Part must ensure that the child is not detained together with persons who are 18 years of age or older.Note


(2) Subsection (1) does not apply if the nominated senior police officer in relation to the child approves the child being detained together with persons who are 18 years of age or older.

(3) The nominated senior police officer in relation to the child may give an approval under subsection (2) only if there are exceptional circumstances justifying the giving of the approval.

(4) An approval under subsection (2) must—

(a) be given in writing; and

(b) set out the exceptional circumstances that justify the giving of the approval.

13AZA Restrictions on contact with other people

(1) Except as provided under this Division, Division 6 and Division 7, while a person is being detained under this Part, the person—



42

(a) is not entitled to contact another person; and

(b) may be prevented from contacting another person.

(2) While a child is being detained under this Part in a youth justice facility, the child is required to give to a police officer exercising authority under this Part any letter that the child wishes to send to any person other than—

(a) the Ombudsman under the Ombudsman Act 1973; or

(b) the IBAC under the Independent Broad-based Anti-corruption Commission Act 2011; or

(c) the Commission for Children and Young People.

(3) The officer in charge of a youth justice facility who receives—

(a) from a child being detained under this Part in the facility a letter required by subsection (2) to be given to a police officer referred to in that subsection; or

(b) a letter sent to a child being detained under this Part in the facility—

must as soon as practicable give that letter to such a police officer.

(4) Subsections (2) and (3) apply to legal documents exchanged between a lawyer and a child being detained under this Part in a youth justice facility as if that document were a letter.



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(5) A child being detained under this Part in a youth justice facility may retain any legal documents that are in the child's possession, subject to reasonable quantity limits imposed by the officer in charge of the youth justice facility.

13AZB Special assistance for person with inadequate knowledge of English language or disability

If the police officer who is detaining a person under this Part has reasonable grounds to believe that the person is unable because of inadequate knowledge of the English language or a disability, to communicate with reasonable fluency in that language—

(a) the police officer has an obligation under section 13AX(3) to arrange for the assistance of an interpreter in informing the person about—

(i) the effect of the police detention decision in relation to the person; and

(ii) the person's rights in relation to their detention under this Part; and

(b) the police officer has an obligation under section 13AZW(2) to give the person reasonable assistance to—

(i) choose a lawyer to act for the person in relation to the order; and

(ii) contact the lawyer.



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Division 6—Questioning

Subdivision 1—Authority to question13AZC Questioning during detention

(1) Subject to this Division, a police officer may question a person being detained under this Part in connection with—

(a) a terrorist act in relation to which the police detention decision relating to the person was made; or

(b) any other terrorist act that—

(i) has occurred within 28 days before the day on which the police detention decision relating to the person was made; or

(ii) the authorised police officer who made the police detention decision has reasonable grounds to suspect could occur within 14 days after the day on which the police detention decision relating to the person was made.

(2) Before any questioning under subsection (1) commences, the police officer must inform the person being detained under this Part that—

(a) the person does not have to say or do anything but that anything the person does say or do may be given in evidence; and

(b) the person may communicate with or attempt to communicate with a lawyer (whether the term legal practitioner or lawyer is used); and



45

(c) if the person is not a citizen or permanent resident of Australia—the person may communicate with or attempt to communicate with the consular office of the country of which the person is a citizen; and

(d) if the police officer has reasonable grounds to believe that the person is unable, because of inadequate knowledge of the English language or a disability, to communicate with reasonable fluency in that language—the person may request the assistance of an interpreter.

(3) In addition, before any questioning under subsection (1) commences, the police officer must inform the person being detained under this Part of the reasons for the making of the police detention decision.

(4) The duration of any period of questioning of a person being detained under this Part must be reasonable.

(5) The person must also be given—

(a) a rest from questioning for a continuous period of 8 hours in any period of 24 hours of detention; and

(b) reasonable breaks during any period of questioning.

(6) This section does not prevent the questioning of a person being detained under this Part for the purposes of—

(a) ensuring the safety and wellbeing of the person; or



46

(b) allowing a police officer to comply with a requirement imposed by law on the police officer in relation to the detention of the person.

13AZD Questioning to be deferred to allow for interpreter

(1) This section applies if a police officer has reasonable grounds to believe that a person being detained under this Part is unable, because of inadequate knowledge of the English language or a disability, to communicate with reasonable fluencyin that language.

(2) A police officer must, before any questioning commences section 13AZC, arrange for the presence of a competent interpreter and defer the questioning until the interpreter is present.

13AZE Questioning to be deferred to enable communication with lawyer or consular office

Subject to section 13AZH or 13AZZB, a police officer must defer questioning under section 13AZC for a time that is reasonable in the circumstances to enable the person being detained to communicate, or attempt to communicate, with—

(a) a lawyer; orNote

See also sections 13AZV and 13AZW.

(b) if the person is not a citizen or permanent resident of Australia—the consular office of the country of which the person is a citizen.



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13AZF Role of lawyers during questioning

If a person being detained under this Part arranges for a lawyer to be present during the questioning under section 13AZC, the police officer conducting the questioning, subject to section 13AZH or 13AZZB, must—

(a) before any questioning commences, allow the person to communicate with the lawyer; and

(b) allow the lawyer to be present during any questioning and to give advice to the person.

13AZG Questioning of children

(1) This section applies if a person being detained under this Part is a child.

(2) Subject to section 13AZH or 13AZZB, a police officer must not question the child under section 13AZC unless—

(a) a parent or guardian of the child or, if a parent or guardian is not available, an independent person is present; and

(b) before any questioning commences, the police officer has allowed the child to communicate with the child's parent or guardian or the independent person.

(3) In addition but subject to subsection (5), if the child, or parent or guardian of the child, does not arrange for a lawyer to be present during questioning under section 13AZC, a police officer must request Victoria Legal Aid to arrange for a lawyer to be present during questioning.



48

(4) Despite anything in the Legal Aid Act 1978, Victoria Legal Aid must arrange a lawyer (a VLA arranged lawyer) to be present during questioning and to offer to provide legal advice to the child.

(5) If during questioning of the child, a police officer believes on reasonable grounds that the VLA arranged lawyer is unreasonably interfering with the questioning, the police officer may stop that lawyer from being present during that questioning.Note

In the case of a lawyer who is not a VLA arranged lawyer, see section 13AZH.

(6) During any questioning of the child, the child, the child's parent or guardian, the independent person or any lawyer who is present during questioning may request a break in the questioning if the child becomes distressed or unable to concentrate.

(7) A police officer conducting the questioning must not unreasonably refuse to accede to a request under subsection (6).

13AZH Communication with lawyers, consular officials, parents, guardians or independent person may be restricted

A police officer does not have to comply with section 13AZE, 13AZF or 13AZG(2) if the police officer believes on reasonable grounds that—

(a) the communication or contact would result in—

(i) a risk arising in relation to action being taken to prevent a terrorist act occurring; or



49

(ii) serious harm to a person; or

(iii) the destruction of evidence of, or relating to, a terrorist act; or

(iv) interference with the gathering of information about—

(A) a terrorist act; or

(B) the preparation for, or the planning of, a terrorist act; or

(v) a risk arising in relation to—

(A) the arrest of a person who is suspected of having committed an offence against Part 5.3 of the Criminal Code of the Commonwealth; or

(B) the taking into custody of a person in relation to whom a police detention decision is in effect, or in relation to whom a police detention decision is likely to be made; or

(C) the taking into custody of a person in relation to whom a preventative detention order is in force, or in relation to whom a preventative detention order is likely to be made; or

(D) the service on a person of a Commonwealth control order; or

(b) the questioning is so urgent, having regard to the safety of other people, that it should not be delayed; or



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(c) in the case of a lawyer who is present during the questioning, the lawyer is unreasonably interfering with the questioning.

Subdivision 2—Recording of questioning

13AZI Definitions

In this Subdivision—

authorised person means any of the following—

(a) a member of Victoria Police personnel (other than a protective services officer);

(b) a person or body engaged to provide services to Victoria Police in relation to the installation or maintenance of recording equipment;

(c) the Director of Public Prosecutions for Victoria or a person acting under the authority of the Director;

(d) the Chief Crown Prosecutor or a Crown Prosecutor or Associate Crown Prosecutor appointed under the Public Prosecutions Act 1994;

(e) a person employed in the Office of Public Prosecutions under the Public Prosecutions Act 1994;

(f) a lawyer representing—

(i) the State; or

(ii) an informant;



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(g) a lawyer representing a person recorded under section 13AZK;

(h) an officer or employee of Victoria Legal Aid employed under the Legal Aid Act 1978;

(i) a court or a person acting under the direction of a court;

(j) a coroner within the meaning of the Coroners Act 2008 or a person acting under the direction of a coroner;

(k) the Information Commissioner appointed under the Freedom of Information Act 1982 or the Privacy and Data Protection Deputy Commissioner appointed under the Privacy and Data Protection Act 2014;

(l) the Chief Examiner or an Examiner appointed under Part 3 of the Major Crime (Investigative Powers) Act 2004 or a person acting under the direction of the Chief Examiner or an Examiner;

(m) the Commissioner within the meaning of the Independent Broad-based Anti-corruption Commission Act 2011 or a person acting under the direction of the Commissioner;

(n) the Inspector within the meaning of the Victorian Inspectorate Act 2011 or a person acting under the direction of the Inspector;



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(o) a member of the Legislative Assembly or Legislative Council or a person acting under the direction of the member;

(p) a person, or person belonging to a class of persons, prescribed for the purposes of this definition;

(q) a police officer or person acting under the direction of the police officer;

(r) a person engaged by a Department or agency to store or retrieve a record;

publish means—

(a) insert in a newspaper or other publication; or

(b) disseminate by broadcast, telecast or cinematograph; or

(c) bring to the notice of the public or any member of the public by any other means, including by publication on the Internet;

recording means a recording made in accordance with section 13AZK;

representation has the same meaning as in the Evidence Act 2008.

13AZJ Digital recordings

If this Subdivision requires an audio recording or an audiovisual recording to be made and the recording is made in a digitised format, the maker of the recording must certify that the recording has not been altered after its making and that the prescribed



53

requirements, if any, in relation to the method of recording have been met.

13AZK Recording of questioning

(1) A police officer who questions a person under this Division must, in accordance with this section, record the following things (the questioning matter)—

(a) the questioning of the person;

(b) the giving of information to the person under section 13AZC(2) and (3);

(c) the person's responses (if any) to any questions and the giving of that information.

(2) If the person being questioned is a child, the police officer must make an audiovisual recording of the questioning matter.

(3) If the person being questioned is not a child, the police officer must ensure that—

(a) an audiovisual recording is made of the questioning matter if it is practicable to do so; or

(b) an audio recording is made of the questioning matter if it is not practicable for an audiovisual recording to be made of the questioning matter.

13AZL Person questioned to be given copy of recordings

(1) If the questioning of a person or the giving of information is recorded as required under section 13AZK, the police officer must give to the person or the person's lawyer without charge—



54

(a) if either an audio recording or an audiovisual recording was made, a copy of that recording as soon as practicable but not later than 7 days after the recording was made; and

(b) if both an audio recording and an audiovisual recording were made—

(i) the audio recording as soon as practicable but not later than 7 days after the recording was made; and

(ii) if the person is charged with an offence to which the recording relates, a copy of the audiovisual recording as soon as practicable but not later than 7 days after the person is charged; and

(c) if a transcript of the recording is prepared, a copy of the transcript as soon as practicable but not later than 7 days after the transcript was made.

(2) The person or the lawyer representing the person may request an additional copy of the audiovisual recording referred to in subsection (1).

(3) On receiving a request under subsection (2), a police officer must give an additional copy of the audiovisual recording.

13AZM Evidence of representations

(1) Subject to subsection (2), evidence of a representation made by a person detained under this Part that is adverse to the person's interests is inadmissible as evidence against the person in a proceeding for an offence unless—



55

(a) that representation was recorded by audio recording or audiovisual recording under section 13AZK; and

(b) if either an audio recording or an audiovisual recording was made, that recording or, if both an audio recording and an audiovisual recording were made, the audiovisual recording is available to be tendered in evidence.

(2) A court may admit evidence of a representation made by a person detained under this Part that is otherwise inadmissible by reason of subsection (1) if the person seeking to adduce the evidence satisfies the court on the balance of probabilities that the circumstances—

(a) are exceptional; and

(b) justify the reception of the evidence.

13AZN Offences in relation to recordings

(1) A person must not knowingly possess an audio recording or an audiovisual recording unless the person—

(a) is the person who was questioned and given information under section 13AZC and the audio recording or audiovisual recording is a recording of that questioning and that giving of information; or

(b) is a lawyer representing the person referred to in paragraph (a); or



56

(c) is an authorised person acting in the performance of their duties; or

(d) has possession of the recording in a sealed package in the course of their duties as a person engaged by a person referred to in paragraph (a), (b) or (c) to transport the recording to that person.

Penalty: In the case of a natural person, level 8 imprisonment (1 year maximum);

In the case of a body corporate, 600 penalty units.

(2) A person must not play an audio recording or an audiovisual recording to another person unless—

(a) the recording is played for purposes connected with any civil or criminal proceeding and any inquiry before any court or tribunal; or

(b) the recording is played for purposes connected with an investigation of a death or a fire or an inquest held by a coroner; or

(c) the recording is played for purposes connected with disciplinary action against a police officer under the Victoria Police Act 2013; or

(d) the recording is played for purposes connected with disciplinary action against a lawyer; or



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(e) the recording is played in accordance with the direction of a court under section 13AZO; or

(f) the recording is played by an authorised person acting in the course of their duties.



(3) A person must not supply or offer to supply an audio recording or an audiovisual recording to another person other than—

(a) the person in relation to whom the recording was made; or

(b) a lawyer representing the person referred to in paragraph (a); or

(c) an authorised person acting in the performance of their duties; or

(d) a person engaged by a person referred to in paragraph (a), (b) or (c) to transport the recording.



(4) A person, other than an authorised person acting in the performance of their duties, must not copy the whole or any part of an audio recording or an audiovisual recording or permit another person to make such a copy, unless the person is acting in



58

accordance with the direction of a court under section 13AZO.



(5) An authorised person must not knowingly or recklessly tamper with, modify or erase (in whole or in part) a recording while the recording is being retained under section 13AZP, except in accordance with the direction of a court under section 13AZO.



(6) A person must not publish or cause to be published the whole or any part of an audio recording or an audiovisual recording except in accordance with the direction of a court under section 13AZO.

Penalty: In the case of a natural person, level 7 imprisonment (2 years maximum);


13AZO Court may give directions in relation to a recording

A court may give directions, with or without conditions, as to the supply, copying, editing, erasure, playing or publishing of an audio recording or an audiovisual recording.



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13AZP Retention of copy of recording

(1) The Chief Commissioner must keep a copy of a recording, if the recording has been made by a police officer under this Division, in safe custody.

(2) A recording referred to in subsection (1) must be kept for a period of 7 years from the making of the recording.

(3) If a court is satisfied that there is good cause to keep a copy of a recording for a period longer than 7 years, the court may order that the Chief Commissioner retain the copy for a further period specified in the order.

(4) An application for an order under subsection (3) may be made by—


(b) an authorised person acting in the performance of the person's duties.

(5) The court must not make an order under subsection (3) unless—

(a) the court is satisfied that the applicant has given reasonable notice of the application to—

(i) the person in relation to whom the recording was made; and

(ii) the Chief Commissioner; and

(b) the court has given that person and the Chief Commissioner a reasonable opportunity to be heard.



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court means—

(a) if a criminal proceeding to which the recording relates has commenced but has not been completed, the court hearing the proceeding;

(b) in any other case, the Magistrates' Court.

Division 7—Contact with other people13AZQ Contacting family members etc.

(1) This section applies subject to section 13AZZB.

(2) A person being detained under this Part is entitled to contact once any one or more of the following persons solely for the purposes of letting the person contacted know that the person being detained is safe and is being detained—

(a) the person's parents or one of person's other family members;

(b) if the person—

(i) lives with another person and that other person is not a family member of the person being detained; or

(ii) lives with other people and those other people are not family members of the person being detained—

that other person or one of those other people;



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(c) if the person is employed—the person's employer;

(d) if the person employs people in a business—one of the people the person employs in that business;

(e) if the person engages in a business together with another person or other people—that other person or one of those other people;

(f) if the police officer detaining the person agrees to the person contacting another person—that person.

(3) The form of contact that the person being detained is entitled to have with another person under subsection (2) is by telephone or electronic communication.

(4) To avoid doubt, the person being detained under this Part is entitled, under subsection (2), to disclose—

(a) the fact that a police detention decision has been made in relation to the person; and

(b) the fact that the person is being detained; and

(c) the period for which the person is being detained.

(5) In addition, a police officer detaining a person under this Part must allow the person, while being detained, to have further contact with one or more of the person's family members or any other person if it is reasonably practicable for that contact to happen.



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(6) To avoid doubt, the person being detained is entitled to disclose the following to a person with whom the person has contact under subsection (5)—

(a) the fact that a police detention decision has been made in relation to the person;

(b) the fact that the person is being detained;

(c) the period for which the person is being detained.

(7) The form of contact that the person being detained under this Part is entitled to have with another person under subsection (5) includes—

(a) being visited by that other person; and

(b) communicating with that other person by telephone or electronic communication.

13AZR Contacting the Ombudsman or the IBAC

A person being detained under this Part is entitled to contact the Ombudsman under the Ombudsman Act 1973 or the IBAC.

13AZS Contacting the Commission for Children and Young People

(1) A person being detained under this Part who is a child is entitled to contact the Commission for Children and Young People.

(2) The form of contact that the child is entitled to have with another person under subsection (1) includes—




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13AZT Contact with consular office


(2) A person being detained under this Part who is not a citizen or permanent resident of Australia is entitled to contact the consular office of the country of which the person is a citizen.

13AZU Contact with special counsel

A person being detained under this Part is entitled to contact a special counsel appointed under section 32 to represent the person's interests under Part 5 for the purposes of section 33(1)(b) or (2)(b).

13AZV Contacting lawyer


(2) A person being detained under this Part is entitled to contact a lawyer but solely for the purpose of—

(a) the person's entitlement to communicate with a lawyer under section 13AZE or 13AZF; or

(b) obtaining advice from the lawyer about the person's legal rights in relation to—

(i) the police detention decision made in relation to the person; or

(ii) the questioning of the person under Division 6; or



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(iii) the treatment of the person while in detention under this Part; or

(c) arranging for the lawyer to act for the person in relation to, and instructing the lawyer in relation to, a proceeding in a court—

(i) for a remedy relating to—

(A) the police detention decision made in relation to the person; or

(B) the treatment of the person while in detention under this Part; or

(ii) relating to an application for a preventative detention order, a prohibited contact order or a counter-terrorism intelligence protection order; or

(d) arranging for the lawyer to act for the person in relation to, and instructing the lawyer in relation to, a complaint to the Ombudsman under the Ombudsman Act 1973, a complaint to the IBAC under Part 9 of the Victoria Police Act 2013 or an investigation by the IBAC under Part 3 of the Independent Broad-based Anti-corruption Commission Act 2011 in relation to—

(i) the making of the police detention decision in relation to the person; or

(ii) the treatment of the person by a police officer while in detention under this Part; or



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(e) arranging for the lawyer to act for the person in relation to an appearance, or hearing, before a court or tribunal in a proceeding to which the person is a party or in which the person otherwise has standing to appear that is to take place while the person is being detained under this Part.

(3) The form of contact that the person being detained under this Part is entitled to have with a lawyer under subsection (2) includes—

(a) being visited by the lawyer; and

(b) communicating with the lawyer by telephone or electronic communication; and

(c) exchanging legal documents with the lawyer.

13AZW Police assistance in choosing a lawyer in certain cases

(1) If—

(a) the person being detained under this Part (or, if the person is a child or is incapable of managing their affairs, a person with whom the person has contact under section 13AZZ) asks to be allowed to contact a particular lawyer under section 13AZV(2); and

(b) either—

(i) the person is not entitled to contact that lawyer because of section 13AZH or 13AZZB; or



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(ii) the person is not able to contact that lawyer—

the police officer who is detaining the person must give the person reasonable assistance to choose another lawyer for the person to contact under section 13AZV(2).Note


(2) If the police officer who is detaining a person under this Part has reasonable grounds to believe that—

(a) the person is unable, because of inadequate knowledge of the English language, or a disability, to communicate with reasonable fluency in that language; and

(b) the person may have difficulties in choosing or contacting a lawyer because of that inability—

the police officer must give the person reasonable assistance (including, if appropriate, by arranging for the assistance of an interpreter) to choose and contact a lawyer under section 13AZV(2).

(3) In recommending lawyers as part of giving a person assistance under subsection (1) or (2), the police officer who is detaining the person may give priority to lawyers who have been given a security clearance at an appropriate level by the Attorney-General's Department of the Commonwealth.



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(4) Despite subsection (3) but subject to section 13AZZB, the person is entitled under this section to contact a lawyer who does not have a security clearance of the kind referred to in subsection (3).

13AZX Monitoring contact under section 13AZQ with family members etc.

(1) The contact that a person being detained under this Part has with another person under section 13AZQ may take place only if it is conducted in such a way that the contact, and the content and meaning of the communication that takes place during the contact, can be effectively monitored by a police officer exercising authority under this Part.

(2) The contact may take place in a language other than English only if the content and meaning of the communication that takes place during the contact can be effectively monitored with the assistance of an interpreter.

(3) Without limiting subsection (2), the interpreter referred to in that subsection may be a police officer.

(4) If the person being detained indicates that they wish the contact to take place in a language other than English, the police officer who is detaining the person must—

(a) arrange for the services of an appropriate interpreter to be provided if it is reasonably practicable to do so during the period during which the person is being detained; and



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(b) if it is reasonably practicable to do so—arrange for those services to be provided as soon as practicable.

13AZY Monitoring contact under section 13AZV with lawyers

(1) Subject to subsection (2), the contact that a person being detained under this Part has with a lawyer under section 13AZV must not be monitored.Note


(2) The contact that a person being detained under this Part has with a lawyer under section 13AZV may be monitored if the nominated senior police officer in relation to the detained person is satisfied that it is reasonably necessary that the contact be monitored.

(3) If the contact that a person being detained under this Part has with a lawyer under section 13AZV is to be monitored, the contact may take place only if it is conducted in such a way that the contact, and the content and meaning of the communication that takes place during the contact, can be effectively monitored by a police officer exercising authority under this Part.

(4) The contact may take place in a language other than English only if the content and meaning of the communication that takes place during the contact can be effectively monitored with the assistance of an interpreter.



69


(6) If the person being detained indicates that they wish the contact to take place in a language other than English, the police officer who is detaining the person must—



(7) The following are not admissible in evidence against the person who is being, or has been, detained under this Part in any proceedings in a court or tribunal—

(a) any communication between the person and a lawyer for a purpose referred to in section 13AZV(2)(a), (b), (c), (d) or (e);

(b) any information derived from, or obtained as a result of, the monitoring of any communication between the person and a lawyer for a purpose referred to in section 13AZV(2)(a), (b), (c), (d) or (e).

(8) This section does not apply to any contact the person being detained has with a lawyer under section 13AZV for the purpose of any communication under section 33(1)(b) or (2)(b).



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13AZZ Special contact rules for person who is a child or incapable of managing own affairs

(1) This section applies—

(a) if the person being detained under this Part—

(i) is a child; or

(ii) is incapable of managing their affairs; and

(b) subject to section 13AZZB.

(2) The person is entitled, while being detained, to have contact with—

(a) a parent or guardian of the person; or

(b) another person who—

(i) is able to represent the person's interests; and

(ii) is, as far as practicable in the circumstances, acceptable to the person and to the police officer who is detaining the person; and

(iii) is not a police officer; and

(iv) is not an AFP member or an AFP employee (within the meaning of the Australian Federal Police Act 1979 of the Commonwealth); and

(v) is not a member (however described) of a police force or police service of another State or of a Territory; and

(vi) is not an officer or employee of the Australian Security Intelligence Organisation.



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(3) To avoid doubt—

(a) if the person being detained (the detainee) has 2 parents or 2 or more guardians, the detainee is entitled to have contact, under subsection (2), with each of those parents or guardians; and

(b) the detainee is entitled to disclose the following to a person with whom the detainee has contact under subsection (2)—

(i) the fact that a police detention decision has been made in relation to the detainee;

(ii) the fact that the detainee is being detained;

(iii) the period for which the detainee is being detained.

(4) The form of contact that the person being detained is entitled to have with another person under subsection (2) includes—


(b) communicating with the other person by telephone or electronic communication.

(5) The period for which the person being detained is entitled to have contact with another person each day under subsection (2) is—

(a) 2 hours; or

(b) any longer period that is permitted by the police officer who is detaining the person.



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(6) The contact that the person being detained has with another person under subsection (2) must be conducted in such a way that the content and meaning of any communication that takes place during the contact can be effectively monitored by a police officer exercising authority under this Part.

(7) If the communication that takes place during the contact takes place in a language other than English, the contact may continue only if the content and meaning of the communication in that language can be effectively monitored with the assistance of an interpreter.


(9) If the person being detained indicates that they wish the communication that takes place during the contact to take place in a language other than English, the police officer who is detaining the person must—





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13AZZA Nominated senior police officer must inform parent or guardian not to disclose certain information


(a) the person being detained under this Part has contact under section 13AZZ(2) with a parent or guardian of the person; and

(b) contact with another parent or guardian of the person is prohibited under section 13AZZB.

(2) The nominated senior police officer in relation to the person being detained must inform the parent or guardian with whom the person has had contact that the parent or guardian must not disclose to the other parent or guardian information of the kind referred to in section 13AZZR(1)(b)(i), (ii) or (iii).Note


13AZZB Contact prohibited in certain cases

The authorised police officer who made the police detention decision that relates to the person being detained under this Part may prohibit contact under section 13AZQ, 13AZT, 13AZV, or 13AZZ if the officer believes on reasonable grounds that contact would result in—

(a) a risk arising in relation to action being taken to prevent a terrorist act occurring; or



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(b) serious harm to a person; or

(c) the destruction of evidence of, or relating to, a terrorist act; or

(d) interference with the gathering of information about—

(i) a terrorist act; or

(ii) the preparation for, or the planning of, a terrorist act; or

(e) a risk arising in relation to—

(i) the arrest of a person who is suspected of having committed an offence against Part 5.3 of the Criminal Code of the Commonwealth; or

(ii) the taking into custody of a person in relation to whom a police detention decision is in effect, or in relation to whom a police detention decision is likely to be made; or

(iii) the taking into custody of a person in relation to whom a preventative detention order is in force, or in relation to whom a preventative detention order is likely to be made; or

(iv) the service on a person of a Commonwealth control order.



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Division 8—Taking and using identification material

13AZZC References to appropriate person in this Division

A reference in this Division to an appropriate person in relation to a child or a person who is incapable of managing their affairs (a vulnerable person), is a reference to a person who—

(a) is capable of representing the vulnerable person's interests; and

(b) as far as is practicable in the circumstances, is acceptable to the vulnerable person and the police officer who is detaining the vulnerable person under this Part; and

(c) is none of the following—

(i) a police officer;

(ii) an AFP member or an AFP employee (within the meaning of the Australian Federal Police Act 1979 of the Commonwealth);

(iii) a member (however described) of a police force or police service of another State or of a Territory;

(iv) an officer or employee of the Australian Security Intelligence Organisation.

13AZZD Taking identification material

(1) A police officer must not take identification material from a person who is being detained under this Part except in accordance with this section.



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Note


(2) A police officer who is of or above the rank of sergeant may take identification material from the person, or cause identification material from the person to be taken, if—

(a) the person consents in writing; or

(b) the police officer believes on reasonable grounds that it is necessary to do so for the purpose of confirming the person's identity as the person in relation to whom the police detention decision is made; or

(c) the police officer believes on reasonable grounds that it is necessary to do so for the purpose of documenting an illness or injury suffered by the person while being detained under this Part.

(3) A police officer may use such force as is necessary and reasonable in the circumstances to take identification material from a person under this section.

(4) Subject to this section, a police officer must not take identification material (other than hand prints, finger prints, foot prints or toe prints) from—

(a) a child; or

(b) a person who is incapable of managing their affairs—



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unless the Magistrates' Court or the Children's Court (in the case of a child) orders that the material be taken.Note


(5) In deciding whether to make an order referred to in subsection (4), the Magistrates' Court or the Children's Court (as the case requires) must have regard to—

(a) the age, or any disability, of the person; and

(b) such other matters as it thinks fit.

(6) The taking of identification material from a child, or a person who is incapable of managing their affairs, must be done in the presence of—

(a) a parent or guardian of the person; or

(b) if a parent or guardian of the person is not acceptable to the person—another appropriate person.

Notes

1 For appropriate person, see section 13AZZC.

2 A contravention of this subsection may be an offence under section 13AZZX.

(7) Despite this section, identification material may be taken from a child, or a person who is capable of managing their affairs, if—

(a) subsections (9) and (10) are satisfied; or

(b) subsection (9) or (10) is satisfied (but not both) and the Children's Court orders that the material be taken.



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(8) In deciding whether to make an order referred to in subsection (7)(b), the Children's Court must have regard to the matters set out in subsection (5).

(9) For the purposes of subsection (7), this subsection is satisfied if the child or person agrees in writing to the taking of the material.

(10) For the purposes of subsection (7), this subsection is satisfied if either of the following agrees in writing to the taking of the material—

(a) a parent or guardian of the child or person;

(b) if a parent or guardian is not acceptable to the child or person—another appropriate person.

Note

For appropriate person, see section 13AZZC.

13AZZE Use of identification material

(1) This section applies if identification material is taken under section 13AZZD from a person being detained under this Part.

(2) The material may be used only for the purpose of determining whether the person is the person in relation to whom the police detention decision is made.Note


(3) To avoid doubt, if the person is being detained in a youth justice facility under this Part, the material may be provided to the Secretary to the Department of Justice and Regulation and used by them only for the



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purpose of identifying the person while the person is detained in the youth justice facility.

13AZZF Destruction of identification material


(a) a period of 12 months elapses after the identification material is taken under this Division from a person detained under this Part (the holding period); and

(b) proceedings in respect of—

(i) the police detention decision relating to the person; or

(ii) the treatment of the person while in detention under this Part—

have not been commenced, or have been commenced and discontinued or completed, within the holding period.

(2) The identification material (including identification material provided to the Secretary to the Department of Justice and Regulation) must be destroyed as soon as practicable after the end of the holding period.

Division 9—End of and release from detention

13AZZG When does detention under this Part end?

(1) Subject to this section, a person's detention under this Part ends—

(a) at the end of the maximum police detention period; or



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(b) if the person—

(i) is taken into custody for the purposes of Subdivision (30A) of Division 1 of Part III of the Crimes Act 1958 in relation to the commission of an indictable offence in Victoria; or

(ii) is arrested under Division 4 of Part IAA, or Part IC, of the Crimes Act 1914 of the Commonwealth; or

(iii) becomes a protected suspect (within the meaning of Part IC of the Crimes Act 1914 of the Commonwealth).

(2) A person's detention under this Part must end before the end of the maximum police detention period if the police officer detaining the person, or the nominated police senior officer in relation to that person, is satisfied that the grounds on which the police detention decision in relation to the person was made have ceased to exist.Note

The nominated police senior officer may be satisfied that the grounds on which the police detention decision in relation to the person cease to exist after the conduct of a periodic review.

(3) In addition, if a preventative detention order is made in relation to the person and the order takes effect before the end of the maximum police detention period, the person's detention under this Part ends when the order takes effect.



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(4) If subsection (1)(a) or (2) applies, the police officer who is detaining a person under this Part must, without delay, release the person from detention or arrange for the person's release from detention.

13AZZH Process for release of person from detention by police officer

(1) The police officer who releases, or arranges in writing for the release of, a person from detention under this Part must give the person a written statement that the person is being released from that detention. The statement must be signed by the police officer.

(2) Subsection (1) does not apply if the police officer releases, or arranges in writing for the release of, the person from detention so that the person may be dealt with—

(a) under Subdivision (30A) of Division 1 of Part III of the Crimes Act 1958; or

(b) in accordance with a warrant under section 34D of the Australian Security Intelligence Organisation Act 1979 of the Commonwealth; orNote

See also section 13AZZI.

(c) under the provisions of Division 4 of Part IAA, or Part IC, of the Crimes Act 1914 of the Commonwealth.



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13AZZI Warrant under section 34D of the Australian Security Intelligence Organisation Act 1979 of the Commonwealth


(a) a person is being detained under this Part; and

(b) a warrant under section 34D of the Australian Security Intelligence Organisation Act 1979 of the Commonwealth is in force in relation to the person; and

(c) a copy of the warrant is given to the police officer who is detaining the person under this Part.

(2) The police officer must take such steps as are necessary to ensure that the person may be dealt with in accordance with the warrant.

(3) Without limiting subsection (2), the police officer may, under section 13AZZH, release, or arrange in writing for the release of, the person from detention under this Part so that the person may be dealt with in accordance with the warrant.

(4) To avoid doubt, the fact that the person is released from detention under this Part so that the person may be—

(a) questioned before a prescribed authority under the warrant; or

(b) detained under the warrant in connection with that questioning—

does not extend the period for which the police detention decision remains in effect in relation to the person.



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Division 10—Oversight by nominated senior police officers

13AZZJ Nominated senior police officers

(1) The Chief Commissioner, as soon as practicable after the making of the police detention decision in relation to a person, must nominate a police officer of or above the rank of superintendent (a nominated senior police officer) in relation to that person.

(2) A nominated senior police officer must be someone who was not involved in the making of the police detention decision.

13AZZK Role of nominated senior police officer

A nominated senior police officer must—

(a) oversee the exercise of powers under this Part and the performance of obligations in relation to the detention of the person under this Part; and

(b) in accordance with section 13AZZN, undertake reviews as to whether the person's detention under this Part should continue; and

(c) receive and consider any representations that are made under section 13AZZL.

13AZZL Representations to a nominated senior police officer

(1) The following persons are entitled to make representations to a nominated senior police officer in relation to a specified matter—

(a) a person being detained under this Part;



84

(b) the Ombudsman under the Ombudsman Act 1973 or the IBAC Commissioner;

(c) the Commission for Children and Young People;

(d) a lawyer acting for a person being detained under this Part;

(e) a person with whom a person being detained under this Part has contact under section 13AZZ(2);

(f) a person exercising authority under the police detention decision in relation to the person or implementing or enforcing the decision (including, if a child is detained in a youth justice facility under this Part, the officer in charge of the facility or any other person involved in the child's detention at that facility).

(2) For the purposes of subsection (1), a specified matter is—

(a) the exercise of powers under this Part and the performance of obligations in relation to the detention of a person under this Part; or

(b) without limiting paragraph (a), compliance with Division 9; or

(c) the treatment of the person while in detention under this Part.

(3) A representation under subsection (1) may be made for the purpose of a periodic review.



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13AZZM Integrity and children oversight bodies to be notified of police detention decision and person being taken into custody

(1) The nominated senior police officer in relation to a person being detained under this Part must give written notice of the specified information to the following entities as soon as practicable after the officer knows of that information—

(a) the Ombudsman under the Ombudsman Act 1973;

(b) the IBAC Commissioner;

(c) if the person is a child—

(i) the Secretary to the Department of Justice and Regulation; and

(ii) the Commission for Children and Young People.

(2) For the purposes of subsection (1), the specified information is—

(a) the making of the police detention decision; and

(b) if the person in relation to whom the police detention decision is made is taken into custody under this Part, that the person has been taken into custody.

13AZZN Periodic review of detention under this Part

(1) The nominated senior police officer in relation to a person being detained under this Part must review whether the person's detention under this Part should continue.



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(2) Without limiting subsection (1), the nominated senior police officer must—

(a) review the basis for detention under this Part including, whether the grounds on which the police detention decision in relation to the person was made have ceased to exist; and

(b) assess—

(i) whether there are reasonable grounds to believe that the person has committed an indictable offence in Victoria; or

(ii) whether there is sufficient information for an investigating official to arrest the person in respect of the commission of an offence in Victoria, and because of that information, for the person to be in the company of an investigating official to be questioned or to participate in an investigation in order to determine the person's involvement (if any) in the commission of that offence; or

(iii) whether there are reasonable grounds to believe that the person has committed a Commonwealth offence (within the meaning of Part IC of the Crimes Act 1914 of the Commonwealth); or

(iv) whether the person could be a protected suspect (within the meaning of Part IC of the Crimes Act 1914 of the Commonwealth).



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(3) In conducting a review, the nominated senior police officer must have regard to—

(a) any submission of a Public Interest Monitor under section 4K in relation to the review; and

(b) any representation made under section 13AZZL.

(4) The nominated senior police officer must conduct a review as soon as practicable after the person is taken into custody under this Part and, after that, no later than 12 hours after the last review.

(5) In deciding when to conduct a review, the nominated senior police officer must have regard to a Public Interest Monitor's availability to perform and exercise the Monitor's functions and powers under Division 2 of Part 1A in relation to the review before it is conducted.

(6) For the purposes of subsection (5), the nominated senior police officer must contact a Public Interest Monitor, in accordance with the regulations, to ascertain that availability.

(7) On completing a review, the nominated senior police officer must, without delay, notify, in writing, the police officer who is detaining that person under this Part of the nominated senior police officer's conclusions on the review.Note

See also section 4H.


investigating official has the meaning given by section 464(2) of the Crimes Act 1958.



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Division 11—Restrictions on disclosure of information relating to detention

13AZZO Definitions

In this Division—

detainee means a person detained under this Part.

13AZZP Detainees prohibited from disclosing certain information

A detainee commits an offence if—

(a) the detainee intentionally discloses to another person—

(i) the fact that a police detention decision has been made in relation to them; or

(ii) the fact that they are being detained under this Part; or

(iii) the fact that contact has been prohibited under this Part; and

(b) the disclosure occurs while the detainee is being detained under this Part; and

(c) the disclosure is not one that the detainee is entitled to make under section 13AZQ, 13AZR, 13AZS, 13AZT, 13AZU, 13AZV or 13AZZ.

Penalty: Level 6 imprisonment (5 years maximum).

13AZZQ Lawyers prohibited from disclosing certain information

(1) A lawyer commits an offence if—

(a) the detainee contacts the lawyer under section 13AZV or a person with whom the detainee has contact under



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section 13AZZ contacts the lawyer for a purpose for which the detainee is entitled to contact a lawyer under section 13AZV; and

(b) the lawyer intentionally discloses to another person—

(i) the fact that a police detention decision has been made in relation to the detainee; or

(ii) the fact that the detainee is being detained under this Part; or

(iii) any information that the detainee or other person gives the lawyer in the course of the contact; and

(c) the disclosure occurs while the detainee is being detained under this Part; and

(d) the disclosure is not made for the purposes of—

(i) a proceeding in a court for a remedy relating to—

(A) the police detention decision made in relation to the detainee; or

(B) the treatment of the detainee while in detention under this Part; or

(ii) a proceeding in a court relating to an application for a preventative detention order, a prohibited contact order or a counter-terrorism intelligence protection order; or



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(iii) a complaint to the Ombudsman under the Ombudsman Act 1973, a complaint to the IBAC under Part 9 of the Victoria Police Act 2013, a complaint under section 52 of the Independent Broad-based Anti-corruption Commission Act 2011 or an investigation by the IBAC under Part 3 of that Act in relation to—

(A) the making of the police detention decision; or

(B) the treatment of the detainee by a police officer while in detention under this Part; or

(iv) communicating with the Commission for Children and Young People in relation to the performance or exercise of the Commission's functions or powers under or in relation to this Part; or

(v) making representations to the nominated senior police officer in relation to the detainee, or another police officer involved in the detainee's detention, about—

(A) the exercise of powers under this Part; or

(B) the performance of obligations in relation to the detainee's detention under this Part; or



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(C) the treatment of the detainee while in detention under this Part.


(2) To avoid doubt, a lawyer does not contravene subsection (1) merely by letting another person know that the detainee is safe but is not able to be contacted for a specified period.

13AZZR Parents or guardians prohibited from disclosing certain information

(1) A parent or guardian of a detainee commits an offence if—

(a) the detainee has contact with the parent or guardian under section 13AZZ; and

(b) the parent or guardian intentionally discloses to another person—



(iii) any information that the detainee gives the parent or guardian in the course of the contact; and

(c) the other person is not a person the detainee is entitled to have contact with under section 13AZZ; and

(d) the disclosure occurs while the detainee is being detained under this Part; and



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(e) the disclosure is not made for the purposes of—

(i) a complaint to the Ombudsman under the Ombudsman Act 1973 or the IBAC under Part 9 of the Victoria Police Act 2013 in relation to the making of the police detention decision or the treatment of the detainee by a police officer while in detention under this Part; or

(ii) contacting a lawyer whom the detainee is entitled to contact under section 13AZV for any purpose for which the detainee is entitled to contact that lawyer under that section; or

(iii) making representations to the nominated senior police officer in relation to the detainee, or another police officer involved in the detainee's detention, about—

(A) the exercise of powers under this Part; or

(B) the performance of obligations in relation to the detainee's detention under this Part; or

(C) the treatment of the detainee while in detention under this Part.




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(2) A person who is employed in the Department of Justice and Regulation, or the Department of Health and Human Services, under Part 3 of the Public Administration Act 2004 does not contravene subsection (1) merely by making a disclosure to another person employed in that Department in the exercise of powers or performance of functions under or in connection with any Act.Note

A child may be in the custody of the Secretary to the Department of Justice and Regulation under the Children, Youth and Families Act 2005. The Secretary to the Department of Health and Human Services may have parental responsibility for a child under that Act or be the guardian of a child under the Adoption Act 1984. A Secretary's functions may be delegated to staff in the Department.

(3) To avoid doubt, a person does not contravene subsection (1) merely by letting another person know that the detainee is safe but is not able to be contacted for a specified period.

13AZZS Parent or guardian of detainee prohibited from disclosing certain information to another parent or guardian

A parent or guardian of a detainee commits an offence if—

(a) the detainee has contact with the parent or guardian under section 13AZZ; and

(b) while the detainee is being detained under this Part, the parent or guardian intentionally discloses any of the following information to another parent or guardian of the detainee (the other parent or guardian)—



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(i) the fact that a police detention decision has been made in relation to the detainee;

(ii) the fact that the detainee is being detained under this Part;

(iii) any information that the detainee gives the parent or guardian in the course of the contact; and

(c) when the disclosure is made, the detainee has not had contact with the other parent or guardian under section 13AZZ while being detained under this Part; and

(d) when the disclosure is made, the parent or guardian has been informed under section 13AZZA(2) by the nominated senior police officer in relation to the detainee that the parent or guardian must not disclose information of that kind to the other parent or guardian.

Penalty:Level 6 imprisonment (5 years maximum).

13AZZT Nominated senior police officer may inform parent or guardian they cannot contact other parent or guardian in certain cases

(1) This section applies if a parent or guardian of a detainee informs the nominated senior police officer in relation to the detainee that the parent or guardian proposes to disclose information of the kind mentioned in section 13AZZS(b) to another parent or guardian of the detainee.



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(2) The nominated senior police officer may inform the parent or guardian that the detainee is not entitled to contact the other parent or guardian under section 13AZZ.

Note

The parent or guardian may commit an offence against section 13AZZS if the other parent or guardian is a person the detainee is not entitled to have contact with under section 13AZZ and the parent or guardian does disclose information of that kind to the other parent or guardian. This is because of the operation of section 13AZZS(c).

13AZZU Interpreters prohibited from disclosing certain information

A person who is an interpreter and who assists in monitoring the contact that a detainee has with someone while the detainee is being detained under this Part commits an offence if—

(a) the person intentionally discloses to another person—



(iii) any information that the person obtains in the course of assisting in the monitoring of that contact; and

(b) the disclosure occurs while the detainee is being detained under this Part.




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13AZZV Disclosure recipient prohibited from disclosing certain information they receive

A person (a disclosure recipient) commits an offence if—

(a) a person (an earlier discloser) discloses to the disclosure recipient—

(i) the fact that a police detention decision has been made in relation to a person; or

(ii) the fact that a person is being detained under this Part; or

(iii) any information that a person communicates to a person while the person is being detained under this Part; and

(b) the disclosure by the earlier discloser to the disclosure recipient contravenes—

(i) section 13AZZP, 13AZZQ, 13AZZR, 13AZZS or 13AZZU; or

(ii) this section; and

(c) the disclosure recipient intentionally discloses that information to another person; and

(d) the disclosure by the disclosure recipient occurs while the person referred to in paragraph (a)(i), (ii) or (iii) is being detained under this Part; and

(e) the disclosure is not made to a person exercising authority under this Part or implementing or enforcing the decision or with responsibility for the safety or



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wellbeing of the person being detained under this Part.


13AZZW Monitors of contact between detainee and lawyer prohibited from disclosing certain information

A person commits an offence if—

(a) the person, under section 13AZY, monitors, or assists in the monitoring of, contact that a detainee has with a lawyer under section 13AZV; and

(b) information is communicated in the course of that contact; and

(c) the information is communicated for one of the purposes referred to in section 13AZV(2); and

(d) the person intentionally discloses that information to another person.


Note

See also section 13AZZ(5).

Division 12—Miscellaneous13AZZX Offences of contravening safeguards

A person commits an offence if—

(a) the person does an act or omits to perform an act; and

(b) the act or omission contravenes—

(i) section 13AK(1); or

(ii) section 13AL(2); or



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(iii) section 13AW(1); or

(iv) section 13AY; or

(v) section 13AZ(1); or

(vi) section 13AZW(1); or

(vii) section 13AZY(1); or

(viii) section 13AZZA(2); or

(ix) section 13AZZD(1), (4) or (6); or

(x) section 13AZZE(2).


13AZZY Police detaining person under a police detention decision


(a) a number of police officers are detaining, or involved in the detention of, a person under this Part at a particular time; and

(b) a power or obligation is expressed in this Part to be conferred or imposed on the police officer detaining the person.

(2) For the purposes of this Part, the power or obligation is conferred or imposed at that time on the most senior of those police officers.

13AZZZ Ombudsman etc. functions and powers not affected

This Part does not affect a function or power of the Ombudsman under the Ombudsman Act 1973 or the IBAC under Part 9 of the Victoria Police Act 2013 or Part 3 of the Independent Broad-based Anti-corruption Commission Act 2011.



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13AZZZA Law relating to legal professional privilege and client legal privilege not affected

To avoid doubt, this Part does not affect the law relating to legal professional privilege or client legal privilege.

13AZZZB Report to the Victorian Inspectorate

(1) If an authorised police officer makes a police detention decision in relation to a person and that person's detention under this Part ends in accordance with Division 9, the authorised police officer must, no later than 7 days after the end of the person's detention, make a report to the Victorian Inspectorate in accordance with this section.

(2) The report must state—

(a) the name of the authorised police officer who made the police detention decision; and

(b) the date and time that the person was taken into custody and detained under this Part; and

(c) the date and time that the detention of the person under this Part ended; and

(d) whether the person was arrested, detained under a preventative detention order or released in accordance with Division 9; and

(e) the name of the nominated senior police officer in relation to the person.



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13AZZZC Person's detention does not prevent provision of medical, dental, psychiatric, physiological or pharmaceutical services

Nothing in this Part or a police detention decision prevents a person detained under this Part being taken to a place and detained there in connection with the carrying out of an examination for, or the provision of, any necessary medical, dental, psychiatric, physiological or pharmaceutical services.".

10 Section 13B repealed

Section 13B of the Terrorism (Community Protection) Act 2003 is repealed.

11 Application for preventative detention order

(1) In section 13C(1) of the Terrorism (Community Protection) Act 2003, for "An" substitute "Subject to subsection (1A), an".

(2) After section 13C(1) of the Terrorism (Community Protection) Act 2003 insert—

"(1A) An authorised police officer must make an application under subsection (1) if the person is a child and is in detention under Part 2AA as soon as practicable after the child is taken into custody under that Part but no later than 36 hours after the child is taken into custody under that Part.".

12 Form and content of application for preventative detention order

(1) In section 13D(1)(e) of the Terrorism (Community Protection) Act 2003—

(a) in subparagraph (ii)(C) omit "and";



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(b) after subparagraph (ii) insert—

"(iia) set out the information (if any) that the applicant has about any periods for which the person has been detained under Part 2AA; and".

(2) For section 13D(2) of the Terrorism (Community Protection) Act 2003 substitute—

"(2) To avoid doubt, subsection (1)(g) does not require counter-terrorism intelligence to be included in the summary.".

(3) After section 13D(3) of the Terrorism (Community Protection) Act 2003 insert—

"(3A) If—

(a) a police detention decision is made in relation to a person on the basis of assisting in preventing a terrorist act occurring within a particular period; and

(b) the person is taken into custody under Part 2AA; and

(c) an application is made for a preventative detention order in relation to the person on the basis of assisting in preventing a different terrorist act occurring within that period—

the application must also identify the information on which the application is based that became available only after the police detention decision was made.

Note

See section 13K(1A).".



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(4) For section 13D(6) of the Terrorism (Community Protection) Act 2003 substitute—

"(6) An application may only be made without notice of it being given to the person in relation to whom the preventative detention order is being sought if the person is not in detention—

(a) under Part 2AA; or

(b) under an order made under a corresponding preventative detention law.".

13 Preventative detention orders

(1) After section 13E(2) of the Terrorism (Community Protection) Act 2003 insert—

"(2A) Without limiting subsection (1), the Supreme Court may make a preventative detention order subject to—

(a) a condition that prohibits the questioning, under Division 5A, of the person in relation to whom the order is made while the person is detained under the order (a questioning prohibition condition); or

(b) a condition (a questioning limitation condition) that limits the questioning, under Division 5A, of the person in relation to whom the order is made while the person is detained under the order to specified times in a day or for a specified period, or both.

(2B) The Supreme Court may make a preventative detention order subject to a questioning prohibition condition or questioning limitation condition if it is satisfied, on



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reasonable grounds, that in all the circumstances it is appropriate to do so.

(2C) Without limiting subsection (1), in the case of an application under section 13C in relation to a child, the Supreme Court may make a preventative detention order subject to conditions if it is satisfied, on reasonable grounds, that in all the circumstances it is appropriate to do so.".

(2) For section 13E(3) of the Terrorism (Community Protection) Act 2003 substitute—

"(3) The Supreme Court may refuse to make a preventative detention order unless—

(a) the authorised police officer applying for it gives the Court any further information that it requests concerning the grounds on which the order is sought; and

(b) in the case of an application under section 13C in relation to a child and in relation to which the Court is considering making the order subject to conditions, the authorised police officer applying for the order satisfies the Court that any such conditions can be met.".

(3) In section 13E(4) of the Terrorism (Community Protection) Act 2003, for "If the application to the Supreme Court is made without notice of it being given to the person in relation to whom a preventative detention order is being sought, the" substitute "The".

(4) In section 13E(9)(a) of the Terrorism (Community Protection) Act 2003, after "in force" insert "or a person detained under Part 2AA".



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14 Nature of preventative detention order

(1) In section 13F(1) of the Terrorism (Community Protection) Act 2003—

(a) for paragraph (a) substitute—

"(a) taken into custody unless the person is already being detained under—

(i) a preventative detention order, or an order for the person's detention made under a corresponding preventative detention law, that is in force or was in force immediately before the making of the new order; or

(ii) Part 2AA; and";

(b) in paragraph (b), after "detained" insert "under the preventative detention order".

(2) In section 13F(4) of the Terrorism (Community Protection) Act 2003—

(a) after paragraph (d) insert—

"(da) the fact that the person may be questioned by a police officer while detained under the order if the order is not subject to a condition referred to in section 13E(2A)(a); and";

(b) after paragraph (g) insert—

"(ga) any questioning prohibition condition or questioning limitation condition to which it is subject; and

(gb) if the order is in relation to a child, any condition under section 13E(2C) to which it is subject; and".



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(3) For section 13F(5) of the Terrorism (Community Protection) Act 2003 substitute—

"(5) To avoid doubt, subsection (4)(h) does not require counter-terrorism intelligence to be included in the summary.".

(4) For section 13F(9) of the Terrorism (Community Protection) Act 2003 and the note at the foot of that subsection substitute—

"(9) Nothing in this Part or a preventative detention order prevents a person detained under a preventative detention order being taken to a place and detained there in connection with the carrying out of an examination for, or the provision of, any necessary medical, dental, psychiatric, physiological or pharmaceutical services.Note

Division 3 of Part 8 of the Corrections Act 1986 (as modified by section 13W(6) of this Act) provides for the issue of a custodial community permit to a person detained in a prison for a purpose relating to his or her health. Section 597 of the Children, Youth and Families Act 2005 (as applied by section 13WA(5) of this Act) provides for medical services and operations in the case of a person detained in a youth justice facility.".

(5) After section 13F(10) of the Terrorism (Community Protection) Act 2003 insert—

"(11) In addition, in the case of a preventative detention order relating to a child, the senior police officer nominated under section 13P(4) in relation to that order must—

(a) notify the Commission for Children and Young People, in writing, of the making of the order; and



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(b) give the Commission for Children and Young People a copy of the order; and

(c) if the child is taken into custody under the order, notify the Commission for Children and Young People, in writing, that the child has been taken into custody under the order.".

15 Duration of preventative detention orders

In section 13G(1) of the Terrorism (Community Protection) Act 2003, for "an order for the person's detention made under a corresponding preventative detention law on the same basis." substitute—

"—

(a) an order for the person's detention made under a corresponding preventative detention law on the same basis; and

(b) Part 2AA on the same basis.".

16 When order starts and ceases to have effect

For the note at the foot of section 13H(1) of the Terrorism (Community Protection) Act 2003 substitute—"Notes

1 When the order starts to have effect it authorises the person to be taken into custody, if necessary (see section 13F(1)(a)). The period for which the person may be detained under the order only starts to run when the person is first taken into custody or detained under the order (see section 13F(1)(b)).

2 See also Division 9 of Part 2AA.".

17 No preventative detention order in relation to person under 14 years of age

(1) In the heading to section 13J of the Terrorism (Community Protection) Act 2003, for "16" substitute "14".



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(2) In section 13J(1) and (2)(b) of the Terrorism (Community Protection) Act 2003, for "16" substitute "14".

18 Restrictions on multiple preventative detention orders

After section 13K(1) of the Terrorism (Community Protection) Act 2003 insert—

"(1A) If—

(a) a police detention decision is made in relation to a person on the basis of assisting in preventing a terrorist act occurring within a particular period; and

(b) the person is being detained under Part 2AA—

a preventative detention order cannot be applied for, or made, under this Division in relation to the person on the basis of assisting in preventing a different terrorist act occurring within that period unless the application, or the order, is based on information that became available only after the police detention decision was made.".

19 Basis for applying for, and making, prohibited contact order

After section 13KA(4)(e)(ii) of the Terrorism (Community Protection) Act 2003 insert—

"(iia) the taking into custody of a person in relation to whom a police detention decision has been made, or in relation to whom a police detention decision is likely to be made; or".



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20 Power to detain person under preventative detention order

(1) Insert the following note at the foot of section 13P(1)(a) of the Terrorism (Community Protection) Act 2003—"Note

See also sections 6(ca) and 6D(1) of the Corrections Act 1986.".

(2) After section 13P(7)(b) of the Terrorism (Community Protection) Act 2003 insert—

"(ba) the Commission for Children and Young People;".

21 Endorsement of order with date and time person taken into custody or detained

In section 13Q of the Terrorism (Community Protection) Act 2003 omit "first" (where twice occurring).

22 Arrangement for detainee to be held in prison

After section 13W(4) of the Terrorism (Community Protection) Act 2003 insert—

"(4A) On the giving of an authorisation under subsection (4), a person at a prison acting under lawful authority on behalf of the Secretary may receive the person into the prison.Note

See also sections 6(ca), 6A(1) and 6E(1)(cac) of the Corrections Act 1986.".



109

23 Arrangement for detainee to be held in youth justice facility

(1) After section 13WA(3) of the Terrorism (Community Protection) Act 2003 insert—

"(3A) On the giving of an authorisation under subsection (3), a person at a youth justice facility acting under lawful authority on behalf of the Secretary may receive the person into the facility.Note

See also section 483(1) and (1A) of the Children, Youth and Families Act 2005 and section 6E(1)(cac) of the Corrections Act 1986.".

(2) Section 13WA(5)(f) of the Terrorism (Community Protection) Act 2003 is repealed.

24 New sections 13WB to 13WD inserted

After section 13WA of the Terrorism (Community Protection) Act 2003 insert—

13WB Transfer of detained person into legal custody of Chief Commissioner for questioning


(a) a person is being detained in a prison or youth justice facility under a preventative detention order; and

(b) a police officer wants to question the person under Division 5A.

(2) An authorised police officer may request the Secretary to the Department of Justice and Regulation to release the person from detention in the prison or youth justice facility into the custody of a police officer.



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(3) A request under subsection (2) must be accompanied by a copy of—

(a) the preventative detention order on which is endorsed the date on which, and time at which, the person was first taken into custody or detained under the order; and

(b) any extension or further extension of the order under section 13I.

(4) If requested to do so under subsection (2), the Secretary to the Department of Justice and Regulation, by instrument, may authorise the release of the person from detention in the prison or youth justice facility into the custody of a police officer.

(5) On the giving of an authorisation under subsection (4), a police officer may take physical custody of the person.Notes

1 In the case of a person detained in a prison, see also sections 6B(3) and 6D(2AA) of the Corrections Act 1986.

2 In the case of a person detained in a youth justice facility, see also section 483(1) and (1A) of the Children, Youth and Families Act 2005 and section 6D(2AA) of the Corrections Act 1986.

13WC Return of person to place of detention at end of questioning

(1) This section applies if a police officer has taken custody of a person under section 13WB(5) for the purpose of questioning that person under Division 5A.

(2) At the cessation of the questioning, the police officer who is detaining the person under a preventative detention order must deliver the person back to the prison or youth



111

justice facility at which the person was detained at the time of the request under section 13WB(2).Notes

1 In the case of a person detained in a prison, see also sections 6(ca), 6A(1) and 6E(1)(cac) of the Corrections Act 1986.

2 In the case of a person detained in a youth justice facility, see also section 483(1) and (1A) of the Children, Youth and Families Act 2005 and section 6E(1)(cac) of the Corrections Act 1986.

13WD Effect on period of detention of transfers of custody of persons for questioning purposes

To avoid doubt, the transfer of the custody of a person under section 13WB or 13WC does not extend the period for which the preventative detention order remains in force in relation to the person.".

25 Effect of preventative detention order to be explained to person detained

In section 13X(2) of the Terrorism (Community Protection) Act 2003—

(a) after paragraph (c) insert—

"(ca) the fact that the person's communication with persons referred to in section 13ZD, and with their lawyer, may be monitored under section 13ZG; and

(cb) the fact, if the Supreme Court has made the order subject to a questioning prohibition condition, that the person must not be questioned by a police officer under Division 5A while detained under the order but may be questioned under section 13ZK; and



112

(cc) the fact, if the Supreme Court has made the order not subject to a questioning prohibition condition, that the person—

(i) may be questioned by a police officer under Division 5A while detained under the order for a duration that is reasonable and that is consistent with any applicable questioning limitation condition; and

(ii) is entitled to breaks during questioning as specified in section 13ZNB(5)(a) and (b); and";

(b) in paragraph (e)(i), after "prohibited contact order" insert "or a counter-terrorism intelligence protection order";

(c) after paragraph (f)(ii) insert—

"(iia) a counter-terrorism intelligence protection order; or";

(d) the Note at the foot or paragraph (f) is repealed;

(e) after paragraph (g) insert—

"(ga) in the case of a child being detained under this Part, the child's entitlement to contact the Commission for Children and Young People under section 13ZFA; and

(gb) the person's entitlement to an interpreter under section 13JA or 13ZNC; and

(gc) the person's entitlement to contact a consular office under section 13ZFB or 13ZND; and".



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26 Copy of preventative detention order

(1) For section 13ZA(2) of the Terrorism (Community Protection) Act 2003 substitute—

"(2) To avoid doubt, subsection (1)(b) does not require counter-terrorism intelligence to be included in the summary.".

(2) In section 13ZA(7) of the Terrorism (Community Protection) Act 2003, for "faxed or emailed to the lawyer" substitute "sent to the lawyer by electronic communication".

27 Detention of persons under 18

In section 13ZBA(2) and (3) of the Terrorism (Community Protection) Act 2003, after "officer" insert ", nominated under section 13P(4) in relation to the preventative detention order,".

28 Restriction on contact with other people

(1) In section 13ZC(1) of the Terrorism (Community Protection) Act 2003, for "and 13ZH" substitute ", 13ZFA, 13ZFB, 13ZFC, 13ZH or 13ZNF".

(2) For section 13ZC(2) of the Terrorism (Community Protection) Act 2003 substitute—

"(2) While a person is being detained in a prison or youth justice facility under a preventative detention order or an order for the person's detention made under a corresponding preventative detention law, the person is required to give to a police officer (within the meaning of this Act) or a police officer (within the meaning of Part 5.3 of the Criminal Code of the Commonwealth), as the case requires, exercising authority under the order any letter that the person wishes to send to any person other than—



114

(a) the Ombudsman under the Ombudsman Act 1973; or

(b) the IBAC under the Independent Broad-based Anti-corruption Commission Act 2011; or

(c) the Commission for Children and Young People; or

(d) the Commonwealth Ombudsman under the Ombudsman Act 1976 of the Commonwealth; or

(e) the Commissioner or an AFP appointee (within the meaning of the Australian Federal Police Act 1979 of the Commonwealth) under Part V of that Act.".

29 Contacting family members etc.

In section 13ZD(2) and (6)(b) of the Terrorism (Community Protection) Act 2003, for ", fax or email" substitute "or electronic communication".

30 Contacting lawyer

(1) In section 13ZF(1) of the Terrorism (Community Protection) Act 2003—

(a) before paragraph (a) insert—

"(aa) the person's entitlement to communicate with a lawyer under section 13ZND or 13ZNE; or";

(b) after paragraph (a)(ii) insert—

"(iia) the questioning of the person under Division 5A; or";

(c) after paragraph (a)(iii) insert—

"(iv) any counter-terrorism intelligence protection order; or";



115

(d) after paragraph (b)(iii) insert—

"(iv) any counter-terrorism intelligence protection order; or";

(e) after paragraph (c)(ii) insert—

"(iii) any application for a counter-terrorism intelligence protection order; or".

(2) In section 13ZF(2)(b) of the Terrorism (Community Protection) Act 2003, for ", fax or email" substitute "or electronic communication".

(3) In section 13ZF(3)(b)(i) of the Terrorism (Community Protection) Act 2003, after "(prohibited contact order)" insert "or section 13ZNG".

31 New sections 13ZFA to 13ZFC inserted

After section 13ZF of the Terrorism (Community Protection) Act 2003 insert—

"13ZFA Contacting the Commission for Children and Young People

(1) A person being detained under a preventative detention order who is a child is entitled to contact the Commission for Children and Young People.

(2) The form of contact that the child is entitled to have with another person under subsection (1) includes—



13ZFB Contact with consular office

A person being detained under a preventative detention order who is not a citizen or permanent resident of Australia is entitled to



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contact the consular office of the country of which the person is a citizen.

13ZFC Contact with special counsel

A person detained under a preventative detention order is entitled to contact a special counsel appointed under section 32 to represent the person's interests under Part 5 for the purposes of section 33(1)(b) or (2)(b).".

32 Contacting family members etc.

Section 13ZD(1) of the Terrorism (Community Protection) Act 2003 is repealed.

33 Monitoring contact under section 13ZD or 13ZF

(1) For section 13ZG(5) of the Terrorism (Community Protection) Act 2003 substitute—

"(5) The following are not admissible in evidence against the person who is being, or has been, detained under a preventative detention order in any proceedings in a court or tribunal—

(a) any communication between the person and a lawyer for a purpose referred to in section 13ZF(1)(aa), (a), (b), (c) or (d);

(b) any information derived from, or obtained as a result of, the monitoring of any communication between the person and a lawyer for a purpose referred to in section 13ZF(1)(aa), (a), (b), (c) or (d).".

(2) After section 13ZG(6) of the Terrorism (Community Protection) Act 2003 insert—

"(7) This section does not apply to any contact the person being detained has with a lawyer under section 13ZF for the purpose of any



117

communication under section 33(1)(b) or (2)(b).".

34 Special contact rules for person under 18 or incapable of managing own affairs

In section 13ZH(4)(b) of the Terrorism (Community Protection) Act 2003, for ", fax or email" substitute "or electronic communication".

35 Entitlement to contact subject to prohibited contact order

In section 13ZI of the Terrorism (Community Protection) Act 2003, for "and 13ZH" substitute ", 13ZFB, 13ZH or 13ZNF".

36 Disclosure offences

(1) In section 13ZJ(1)(d) of the Terrorism (Community Protection) Act 2003, after "13ZF" insert ", 13ZFA, 13ZFB, 13ZFC".

(2) In section 13ZJ(2)(d) of the Terrorism (Community Protection) Act 2003—

(a) in subparagraphs (i) and (ii), after "prohibited contact order" insert "or a counter-terrorism intelligence protection order"; and

(b) after subparagraph (ii) insert—

"(iia) communicating with the Commission for Children and Young People in relation to the performance or exercise of the Commission's functions or powers under or in relation to this Part; or".

(3) In section 13ZJ(3)(e)(i) of the Terrorism (Community Protection) Act 2003, after "prohibited contact order" insert "or a counter-terrorism intelligence protection order".



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(4) For the Note at the foot of section 13ZJ(4) of the Terrorism (Community Protection) Act 2003 substitute—"Note

A child may be in the custody of the Secretary to the Department of Justice and Regulation under the Children, Youth and Families Act 2005. The Secretary to the Department of Health and Human Services may have parental responsibility for a child under that Act or be the guardian of a child under the Adoption Act 1984. A Secretary's functions may be delegated to staff in the Department.".

37 Questioning of person prohibited while person is detained

(1) In the heading to section 13ZK of the Terrorism (Community Protection) Act 2003, after "detained" insert "if Court orders".

(2) Before section 13ZK(1) of the Terrorism (Community Protection) Act 2003 insert—

"(1AA) This section applies if the Supreme Court makes a preventative detention order subject to a questioning prohibition condition.".

38 New Division 5A of Part 2A inserted

After Division 5 of Part 2A of the Terrorism (Community Protection) Act 2003 insert—

"Division 5A—Questioning

Subdivision 1—Preliminary13ZNA Application

This Division applies if—

(a) the Supreme Court makes a preventative detention order; and

(b) that order is not subject to a questioning prohibition condition.



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Subdivision 2—Authority to question13ZNB Questioning during detention

(1) Subject to this Division, a police officer may question a person being detained under a preventative detention order in connection with—

(a) a terrorist act in relation to which the preventative detention order relating to the person was made; or

(b) any other terrorist act that—

(i) has occurred within 28 days before the day on which the preventative detention order relating to the person was made; or

(ii) the authorised police officer who applied for the preventative detention order has reasonable grounds to suspect could occur within 14 days after the day on which the police detention decision relating to the person was made.

(2) Before any questioning under subsection (1) commences, the police officer must inform the person being detained under the preventative detention order that—

(a) the person does not have to say or do anything but that anything the person does say or do may be given in evidence; and

(b) the person may communicate with or attempt to communicate with a lawyer (whether the term legal practitioner or lawyer is used); and



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(c) if the person is not a citizen or permanent resident of Australia—the person may communicate with or attempt to communicate with the consular office of the country of which the person is a citizen; and

(d) if the police officer has reasonable grounds to believe that the person is unable, because of inadequate knowledge of the English language or a disability, to communicate with reasonable fluency in that language—the person may request the assistance of an interpreter.

(3) In addition, before any questioning under subsection (1) commences, the police officer must inform the person being detained under the preventative detention order of the reasons for the making of the preventative detention order.

(4) The duration of any period of questioning of a person being detained under the preventative detention order must be—

(a) reasonable; and

(b) consistent with any questioning limitation condition.

(5) The person must also be given—

(a) a rest from questioning for a continuous period of 8 hours in any period of 24 hours of detention; and

(b) reasonable breaks during any period of questioning.



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(6) This section does not prevent the questioning of a person being detained under the preventative detention order for the purposes of—

(a) ensuring the safety and wellbeing of the person; or

(b) allowing a police officer to comply with a requirement imposed by law on the police officer in relation to the detention of the person.

13ZNC Questioning to be deferred to allow for interpreter

(1) This section applies if a police officer has reasonable grounds to believe that a person being detained under a preventative detention order is unable, because of inadequate knowledge of the English language or a disability, to communicate with reasonable fluency in that language.

(2) A police officer must, before any questioning under section 13ZNB commences, arrange for the presence of a competent interpreter and defer the questioning until the interpreter is present.

13ZND Questioning to be deferred to enable communication with lawyer or consular office

Subject to sections 13ZI and 13ZNG, a police officer must defer questioning under section 13ZNB for a time that is reasonable in the circumstances to enable the person being detained to communicate, or attempt to communicate, with—



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(a) a lawyer; orNote

See also section 13ZF.

(b) if the person is not a citizen or permanent resident of Australia—the consular office of the country of which the person is a citizen.

13ZNE Role of lawyers during questioning

If a person being detained under a preventative detention order arranges for a lawyer to be present during the questioning under section 13ZNB, the police officer conducting the questioning, subject to sections 13ZI and 13ZNG, must—

(a) before any questioning commences, allow the person to communicate with the lawyer; and

(b) allow the lawyer to be present during any questioning and to give advice to the person.

13ZNF Questioning of children

(1) This section applies if a person being detained under a preventative detention order is a child.

(2) Subject to sections 13ZI and 13ZNG, a police officer must not question the child under section 13ZNB unless—

(a) a parent or guardian of the child or, if a parent or guardian is not available, an independent person is present; and

(b) before any questioning commences, the police officer has allowed the child to communicate with the child's parent or guardian or the independent person.



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(3) In addition but subject to subsection (5), if the child, or parent or guardian of the child, does not arrange for a lawyer to be present during questioning under section 13ZNB, a police officer must request Victoria Legal Aid to arrange for a lawyer to be present during questioning.

(4) Despite anything in the Legal Aid Act 1978, Victoria Legal Aid must arrange a lawyer (a VLA arranged lawyer) to be present during questioning and to offer to provide legal advice to the child.

(5) If during questioning of the child, a police officer believes on reasonable grounds that the VLA arranged lawyer is unreasonably interfering with the questioning, the police officer may stop that lawyer from being present during that questioning.Note

In the case of a lawyer who is not a VLA arranged lawyer, see section 13ZNG.

(6) During any questioning of the child, the child, the child's parent or guardian, the independent person or any lawyer who is present during questioning may request a break in the questioning if the child becomes distressed or unable to concentrate.

(7) A police officer conducting the questioning must not unreasonably refuse to accede to a request under subsection (6).



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13ZNG Communication with lawyers, consular officials, parents, guardians or independent person may be restricted

A police officer does not have to comply with section 13ZND, 13ZNE or 13ZNF(2) if the police officer believes on reasonable grounds that—

(a) the communication or contact would result in—

(i) a risk arising in relation to action being taken to prevent a terrorist act occurring; or

(ii) serious harm to a person; or

(iii) the destruction of evidence of, or relating to, a terrorist act; or

(iv) interference with the gathering of information about—

(A) a terrorist act; or

(B) the preparation for, or the planning of, a terrorist act; or

(v) a risk arising in relation to—

(A) the arrest of a person who is suspected of having committed an offence against Part 5.3 of the Criminal Code of the Commonwealth; or

(B) the taking into custody of a person in relation to whom a police detention decision is in effect, or in relation to whom a police detention decision is likely to be made; or



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(C) the taking into custody of a person in relation to whom a preventative detention order is in force, or in relation to whom a preventative detention order is likely to be made; or

(D) the service on a person of a Commonwealth control order; or

(b) the questioning is so urgent, having regard to the safety of other people, that it should not be delayed; or

(c) in the case of a lawyer who is present during the questioning, the lawyer is unreasonably interfering with the questioning.

Subdivision 3—Recording of questioning

13ZNH Definitions

In this Subdivision—

authorised person means any of the following—

(a) a member of Victoria Police personnel (other than a protective services officer);

(b) a person or body engaged to provide services to Victoria Police in relation to the installation or maintenance of recording equipment;



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(c) the Director of Public Prosecutions for Victoria or a person acting under the authority of the Director;

(d) the Chief Crown Prosecutor or a Crown Prosecutor or Associate Crown Prosecutor appointed under the Public Prosecutions Act 1994;

(e) a person employed in the Office of Public Prosecutions under the Public Prosecutions Act 1994;

(f) a lawyer representing—

(i) the State; or

(ii) an informant;

(g) a lawyer representing a person recorded under section 13ZNJ;

(h) an officer or employee of Victoria Legal Aid employed under the Legal Aid Act 1978;

(i) a court or a person acting under the direction of a court;

(j) a coroner within the meaning of the Coroners Act 2008 or a person acting under the direction of a coroner;

(k) the Information Commissioner appointed under the Freedom of Information Act 1982 or the Privacy and Data Protection Deputy Commissioner appointed under the Privacy and Data Protection Act 2014;



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(l) the Chief Examiner or an Examiner appointed under Part 3 of the Major Crime (Investigative Powers) Act 2004 or a person acting under the direction of the Chief Examiner or an Examiner;

(m) the Commissioner within the meaning of the Independent Broad-based Anti-corruption Commission Act 2011 or a person acting under the direction of the Commissioner;

(n) the Inspector within the meaning of the Victorian Inspectorate Act 2011 or a person acting under the direction of the Inspector;

(o) a member of the Legislative Assembly or Legislative Council or a person acting under the direction of the member;

(p) a person, or person belonging to a class of persons, prescribed for the purposes of this definition;

(q) a police officer or person acting under the direction of the police officer;

(r) a person engaged by a Department or agency to store or retrieve a record;

publish means—

(a) insert in a newspaper or other publication; or

(b) disseminate by broadcast, telecast or cinematograph; or



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(c) bring to the notice of the public or any member of the public by any other means, including by publication on the Internet;

recording means a recording made in accordance with section 13ZNJ;

representation has the same meaning as in the Evidence Act 2008.

13ZNI Digital recordings

If this Subdivision requires an audio recording or an audiovisual recording to be made and the recording is made in a digitised format, the maker of the recording must certify that the recording has not been altered after its making and that the prescribed requirements, if any, in relation to the method of recording have been met.

13ZNJ Recording of questioning

(1) A police officer who questions a person under this Division must, in accordance with this section, record the following things (the questioning matter)—

(a) the questioning of the person;

(b) the giving of information to the person under section 13ZNB(2) and (3);

(c) the person's responses (if any) to any questions and the giving of that information.

(2) If the person being questioned is a child, the police officer must make an audiovisual recording of the questioning matter.



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(3) If the person being questioned is not a child, the police officer must ensure that—

(a) an audiovisual recording is made of the questioning matter if it is practicable to do so; or

(b) an audio recording is made of the questioning matter if it is not practicable for an audiovisual recording to be made of the questioning matter.

13ZNK Person questioned to be given copy of recordings

(1) If the questioning of a person or the giving of information is recorded as required under section 13ZNJ, the police officer must give to the person or the person's lawyer without charge—

(a) if either an audio recording or an audiovisual recording was made, a copy of that recording as soon as practicable but not later than 7 days after the recording was made; and

(b) if both an audio recording and an audiovisual recording were made—

(i) the audio recording as soon as practicable but not later than 7 days after the recording was made; and

(ii) if the person is charged with an offence to which the recording relates, a copy of the audiovisual recording as soon as practicable but not later than 7 days after the person is charged; and



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(c) if a transcript of the recording is prepared, a copy of the transcript as soon as practicable but not later than 7 days after the transcript was made.

(2) The person or the lawyer representing the person may request an additional copy of the audiovisual recording referred to in subsection (1).

(3) On receiving a request under subsection (2), a police officer must give an additional copy of the audiovisual recording.

13ZNL Evidence of representations

(1) Subject to subsection (2), evidence of a representation made by a person detained under a preventative detention order that is adverse to the person's interests is inadmissible as evidence against the person in a proceeding for an offence unless—

(a) that representation was recorded by audio recording or audiovisual recording under section 13ZNJ; and

(b) if either an audio recording or an audiovisual recording was made, that recording or, if both an audio recording and an audiovisual recording were made, the audiovisual recording is available to be tendered in evidence.

(2) A court may admit evidence of a representation made by a person detained under a preventative detention order that is otherwise inadmissible by reason of subsection (1) if the person seeking to adduce the evidence satisfies the court on the balance of probabilities that the circumstances—



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(a) are exceptional; and

(b) justify the reception of the evidence.

13ZNM Offences in relation to recordings

(1) A person must not knowingly possess an audio recording or an audiovisual recording unless the person—

(a) is the person who was questioned and given information under section 13ZNB and the audio recording or audiovisual recording is a recording of that questioning and that giving of information; or

(b) is a lawyer representing the person referred to in paragraph (a); or

(c) is an authorised person acting in the performance of his or her duties; or

(d) has possession of the recording in a sealed package in the course of his or her duties as a person engaged by a person referred to in paragraph (a), (b) or (c) to transport the recording to that person.



(2) A person must not play an audio recording or an audiovisual recording to another person unless—

(a) the recording is played for purposes connected with any civil or criminal



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proceeding and any inquiry before any court or tribunal; or

(b) the recording is played for purposes connected with an investigation of a death or a fire or an inquest held by a coroner; or

(c) the recording is played for purposes connected with disciplinary action against a police officer under the Victoria Police Act 2013; or

(d) the recording is played for purposes connected with disciplinary action against a lawyer; or

(e) the recording is played in accordance with the direction of a court under section 13ZNN; or

(f) the recording is played by an authorised person acting in the course of his or her duties.



(3) A person must not supply or offer to supply an audio recording or an audiovisual recording to another person other than—


(b) a lawyer representing the person referred to in paragraph (a); or

(c) an authorised person acting in the performance of his or her duties; or



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(d) a person engaged by a person referred to in paragraph (a), (b) or (c) to transport the recording.



(4) A person, other than an authorised person acting in the performance of his or her duties, must not copy the whole or any part of an audio recording or an audiovisual recording or permit another person to make such a copy, unless the person is acting in accordance with the direction of a court under section 13ZNN.



(5) An authorised person must not knowingly or recklessly tamper with, modify or erase (in whole or in part) a recording while the recording is being retained under section 13ZNO, except in accordance with the direction of a court under section 13ZNN.





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(6) A person must not publish or cause to be published the whole or any part of an audio recording or an audiovisual recording except in accordance with the direction of a court under section 13ZNN.

Penalty: In the case of a natural person, level 7 imprisonment (2 years maximum);


13ZNN Court may give directions in relation to a recording

A court may give directions, with or without conditions, as to the supply, copying, editing, erasure, playing or publishing of an audio recording or an audiovisual recording.

13ZNO Retention of copy of recording

(1) The Chief Commissioner must keep a copy of a recording, if the recording has been made by a police officer under this Division, in safe custody.

(2) A recording referred to in subsection (1) must be kept for a period of 7 years from the making of the recording.

(3) If a court is satisfied that there is good cause to keep a copy of a recording for a period longer than 7 years, the court may order that the Chief Commissioner retain the copy for a further period specified in the order.



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(4) An application for an order under subsection (3) may be made by—


(b) an authorised person acting in the performance of the person's duties.

(5) The court must not make an order under subsection (3) unless—

(a) the court is satisfied that the applicant has given reasonable notice of the application to—

(i) the person in relation to whom the recording was made; and

(ii) the Chief Commissioner; and

(b) the court has given that person and the Chief Commissioner a reasonable opportunity to be heard.


court means—

(a) if a criminal proceeding to which the recording relates has commenced but has not been completed, the court hearing the proceeding;

(b) in any other case, the Magistrates' Court.".

39 Section 13ZU repealed

Section 13ZU of the Terrorism (Community Protection) Act 2003 is repealed.



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40 New Part 8 inserted


"Part 8—Transitional provisions42 Justice Legislation Amendment

(Terrorism) Act 2018—authorised police officers

An appointment under section 13B(2) that is in effect immediately before the commencement of section 4(3) of the Justice Legislation Amendment (Terrorism) Act 2018 is taken to be an appointment under section 3(2) on that commencement.".

Division 2—Requirements for granting preventative detention orders or authorising special

police powers41 Objects of Part 2A

(1) For section 13A(a) of the Terrorism (Community Protection) Act 2003 substitute—

"(a) prevent a terrorist act that is capable of being carried out, and could occur, within the next 14 days; or".

(2) The note at the foot of section 13A of the Terrorism (Community Protection) Act 2003 is repealed.

42 Application for preventative detention order

For section 13C(2) of the Terrorism (Community Protection) Act 2003 substitute—

"(2) A terrorist act referred to in subsection (1)(a) must be capable of being carried out, and could occur, within the next 14 days.".



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For section 13E(2) of the Terrorism (Community Protection) Act 2003 substitute—

"(2) A terrorist act referred to in subsection (1)(a) must be capable of being carried out, and could occur, within the next 14 days.".

44 Authorisation of special powers to prevent, or reduce the impact of, a terrorist act

In section 21D(1)(a) and (4)(b) of the Terrorism (Community Protection) Act 2003, for "or that there is a threat of a terrorist act occurring in the next 14 days" substitute "or is capable of being carried out, and could occur, within the next 14 days".

Division 3—Special police powers45 Definitions

In section 3 of the Terrorism (Community Protection) Act 2003 insert the following definition—

"protective services officer has the same meaning as in the Victoria Police Act 2013;".

46 Authorisation of special powers to prevent, or reduce the impact of, a terrorist act

(1) In section 21D(1) of the Terrorism (Community Protection) Act 2003, for ", with the written approval of the Premier, in accordance with this Division if the Chief Commissioner" substitute "in accordance with this Division if".

(2) In section 21D(1)(a) of the Terrorism (Community Protection) Act 2003, for "is satisfied" substitute "the Chief Commissioner is satisfied".



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(3) In section 21D(1)(b) of the Terrorism (Community Protection) Act 2003—

(a) for "is satisfied" substitute "the Chief Commissioner is satisfied";

(b) for "property." substitute "property; and".

(4) After section 21D(1)(b) of the Terrorism (Community Protection) Act 2003 insert—

"(c) subject to subsection (1A), the Premier has approved in writing the giving of the authorisation.Note

The Premier may delegate the power of approval to a Minister—see section 21IB.".

(5) After section 21D(1) of the Terrorism (Community Protection) Act 2003 insert—

"(1A) An interim authorisation may be given by the Chief Commissioner without the written approval of the Premier if—

(a) the Premier is not reasonably able to be contacted at the time it is given and the Premier has not delegated the power to approve an interim authorisation under section 21IB; or

(b) the Premier has delegated that power and—

(i) the Minister to whom the power is delegated is not reasonably able to be contacted at the time it is given; and

(ii) the Premier is also not reasonably able to be contacted at the time it is given.".

(6) In section 21D(2) of the Terrorism (Community Protection) Act 2003, for "24" substitute "48".



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47 Authorisation of special powers relating to the investigation of, or recovery from, a terrorist act

(1) In section 21E(1) of the Terrorism (Community Protection) Act 2003, for ", with the written approval of the Premier, in accordance with this Division if the Chief Commissioner" substitute "in accordance with this Division if".

(2) In section 21E(1)(a) of the Terrorism (Community Protection) Act 2003, for "is satisfied" substitute "the Chief Commissioner is satisfied".

(3) In section 21E(1)(b) of the Terrorism (Community Protection) Act 2003—

(a) for "is satisfied" substitute "the Chief Commissioner is satisfied";

(b) for "act." substitute "act; and".

(4) After section 21E(1)(b) of the Terrorism (Community Protection) Act 2003 insert—

"(c) subject to subsection (1A), the Premier has approved in writing the giving of the authorisation.Note

The Premier may delegate the power of approval to a Minister—see section 21IB.".

(5) After section 21E(1) of the Terrorism (Community Protection) Act 2003 insert—

"(1A) An interim authorisation may be given by the Chief Commissioner without the written approval of the Premier if—

(a) the Premier is not reasonably able to be contacted at the time it is given and the Premier has not delegated the power to approve an interim authorisation under section 21IB; or



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(b) the Premier has delegated that power and—

(i) the Minister to whom the power is delegated is not reasonably able to be contacted at the time it is given; and

(ii) the Premier is also not reasonably able to be contacted at the time it is given.".

(6) In section 21E(2) of the Terrorism (Community Protection) Act 2003, for "24" substitute "48".

48 How authorisation may be given

After section 21H(3) of the Terrorism (Community Protection) Act 2003 insert—

"(3A) If the Chief Commissioner gives an interim authorisation without the approval of the Premier in accordance with section 21D(1A) or 21E(1A), the Chief Commissioner must, as soon as practicable, give a copy of the authorisation to—

(a) the Premier; and

(b) if the Premier has delegated the power to approve an interim authorisation to a Minister, the Minister.".

49 Duration of authorisation

(1) In section 21I(2)(a) of the Terrorism (Community Protection) Act 2003, for "24" substitute "48".

(2) After section 21I(4) of the Terrorism (Community Protection) Act 2003 insert—

"(4A) The Premier may at any time revoke an interim authorisation given by the Chief Commissioner in accordance with section 21D(1A) or 21E(1A) if the Premier is not



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satisfied of the matters in section 21D(1)(a) and (b) or 21E(1)(a) and (b) (as the case requires).

(4B) If the Premier has delegated the power to approve an interim authorisation under section 21IB, the Minister to whom the power is delegated may at any time revoke an interim authorisation given by the Chief Commissioner in accordance with section 21D(1A) or 21E(1A) if the Minister is not satisfied of the matters in section 21D(1)(a) and (b) or 21E(1)(a) and (b) (as the case requires).

(4C) If the Premier or the Minister revokes an interim authorisation under subsection (4A) or (4B), the Premier or the Minister (as the case requires) must notify the Chief Commissioner in writing.

(4D) The revocation of an interim authorisation under subsection (4A) or (4B) takes effect when the Chief Commissioner receives the notification referred to in subsection (4C).".

50 New sections 21IA and 21IB inserted

After section 21I of the Terrorism (Community Protection) Act 2003 insert—

"21IA Variation of interim authorisation

(1) The Premier, or if the Premier has delegated the power to approve an interim authorisation under section 21IB, the Minister to whom the power is delegated, may at any time vary an interim authorisation given by the Chief Commissioner in accordance with section 21D(1A) or 21E(1A).



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(2) If the Premier or a Minister varies an interim authorisation under subsection (1), the Premier or Minister (as the case requires) must notify the Chief Commissioner in writing.

(3) The variation of an interim authorisation under subsection (1) takes effect when the Chief Commissioner receives the notification referred to in subsection (2).

(4) The variation of an interim authorisation does not affect anything lawfully done in reliance on the interim authorisation before it was varied.

21IB Premier may delegate power to approve interim authorisation

(1) The Premier may by instrument delegate to a Minister the power to approve an interim authorisation given by the Chief Commissioner under section 21D or 21E.

(2) The Premier must give the Chief Commissioner a copy of the delegation.".

51 Exercise of special powers by police officers and protective services officers

(1) In the heading to section 21K of the Terrorism (Community Protection) Act 2003, after "police officers" insert "and protective services officers".

(2) In section 21K(1) of the Terrorism (Community Protection) Act 2003, after "police officer" (wherever occurring) insert "or protective services officer".

(3) In section 21K(2) of the Terrorism (Community Protection) Act 2003, after "police officer" insert "or protective services officer".



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(4) In section 21K(3) of the Terrorism (Community Protection) Act 2003, for "a police officer" substitute "either a police officer or a protective services officer".

52 Power to obtain disclosure of identity

In section 21O(1), (4) and (5) of the Terrorism (Community Protection) Act 2003, after "police officer" (wherever occurring) insert "or protective services officer".

53 Power to search persons

In section 21P(1), (2), (4) and (5) of the Terrorism (Community Protection) Act 2003, after "police officer" (wherever occurring) insert "or protective services officer".

54 Power to search vehicles

In section 21Q(1), (2) and (3) of the Terrorism (Community Protection) Act 2003, after "police officer" (wherever occurring) insert "or protective services officer".

55 Power to move vehicles

(1) In section 21R(1) of the Terrorism (Community Protection) Act 2003, after "police officer" (where twice occurring) insert "or protective services officer".

(2) In section 21R(2) of the Terrorism (Community Protection) Act 2003, after "police officer" insert "or protective services officer".

56 Power to enter and search premises

(1) In section 21S(1) and (3) of the Terrorism (Community Protection) Act 2003, after "police officer" (wherever occurring) insert "or protective services officer".



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(2) For section 21S(2) of the Terrorism (Community Protection) Act 2003 substitute—

"(2) The police officer or protective services officer—

(a) must do as little damage as is reasonably possible; and

(b) must ensure that a person assisting the police officer or protective services officer does as little damage as is reasonably possible.".

57 New sections 21SA, 21SB and 21SC inserted

After section 21S of the Terrorism (Community Protection) Act 2003 insert—

"21SA Powers in respect of premises within area that is the target of an authorisation

(1) This section applies if premises are within an area that is the target of an authorisation.

(2) A police officer or protective services officer may do any of the following if the police officer or protective services officer considers on reasonable grounds that it is necessary for the purposes of the authorisation—

(a) enter the premises;

(b) direct a person to leave, or not to leave, the premises or a part of the premises;

(c) exclude a person from the premises or a part of the premises;

(d) remove or cause to be removed from the premises, or a part of the premises, a person who—

(i) does not comply with a direction to leave under paragraph (b); or



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(ii) has been excluded from the premises, or a part of the premises, under paragraph (c);

(e) disconnect or shut off electricity, gas, water or other services at the premises;

(f) direct a person at the premises to disconnect or shut off electricity, gas, water or other services at the premises.

(3) The police officer or protective services officer—

(a) must do as little damage as reasonably possible; and

(b) must ensure that a person assisting the police officer or protective services officer does not do any more damage than is reasonably necessary.

(4) If only part of a building or vehicle is within the area that is the target of the authorisation, the powers set out in subsection (2) may be exercised in respect of any part of that building or vehicle.

21SB Powers in respect of things within area that is the target of an authorisation


(a) a thing is within an area that is the target of an authorisation; or

(b) a thing is in a building or vehicle any part of which is within an area that is the target of an authorisation.

(2) A police officer or protective services officer may do any of the following if the police officer or protective services officer considers on reasonable grounds that it is



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necessary for the purposes of the authorisation—

(a) direct an owner of the thing, a person apparently in control of the thing or, if the thing is located at a premises, any other person at the premises—

(i) to place the thing in the control of a police officer or protective services officer; or

(ii) to make use of the thing as specified by a police officer or protective services officer;

(b) without a warrant take possession of the thing;

(c) make use of the thing.

(3) The police officer or protective services officer—

(a) must do as little damage as reasonably possible; and

(b) must ensure that a person assisting the police officer or protective services officer does as little damage as is reasonably possible.

21SC Compensation for loss or damage

(1) A person may apply to the Minister for compensation for the following kinds of loss or damage resulting from the exercise of a power under section 21SA(2) or 21SB(2)—

(a) economic loss suffered by the person;

(b) damage to the person's property (whether real or personal).



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(2) The Minister must pay compensation to the person if the Minister is satisfied that—

(a) the person has suffered loss or damage of a kind referred to in subsection (1); and

(b) that loss or damage is a result of the exercise of a power under section 21SA(2) or 21SB(2).

(3) A person who applies for compensation under subsection (1) may apply to VCAT for review of a decision made on that application by the Minister under subsection (2).".

58 Cordon around target area

In section 21T(1) and (3) of the Terrorism (Community Protection) Act 2003, after "police officer" insert "or protective services officer".

59 Power to seize and detain things

In section 21U(1) and (3) of the Terrorism (Community Protection) Act 2003, after "police officer" (wherever occurring) insert "or protective services officer".

60 Use of force generally

(1) In the heading to section 21V of the Terrorism (Community Protection) Act 2003 omit "by police".

(2) In section 21V of the Terrorism (Community Protection) Act 2003, after "police officer" (where twice occurring) insert "or protective services officer".



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61 Offence to obstruct or hinder search or other powers

In section 21W(a) and (b) of the Terrorism (Community Protection) Act 2003, after "police officer" insert "or protective services officer".

62 Supplying police officer's or protective services officer's details and other information

(1) In the heading to section 21X of the Terrorism (Community Protection) Act 2003, for "police officer's" substitute "police officer's or protective services officer's".

(2) In section 21X(1) of the Terrorism (Community Protection) Act 2003, after "police officer" (wherever occurring) insert "or protective services officer".

63 Schedule 1—Conduct of personal searches under Part 3A

(1) In clause 1 of Schedule 1 to the Terrorism (Community Protection) Act 2003, after "police officer" insert "or protective services officer".

(2) In clause 3(1) of Schedule 1 to the Terrorism (Community Protection) Act 2003, after "police officer" insert "or protective services officer".

(3) In clause 3(2) of Schedule 1 to the Terrorism (Community Protection) Act 2003, after "police officer" (where twice occurring) insert "or protective services officer".

(4) In clause 4 of Schedule 1 to the Terrorism (Community Protection) Act 2003, after "police officer" (where twice occurring) insert "or protective services officer".



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(5) In clause 5(1), (2), (3), (4), (5) and (10) of Schedule 1 to the Terrorism (Community Protection) Act 2003, after "police officer" insert "or protective services officer".

(6) In clause 5(6) and (7) of Schedule 1 to the Terrorism (Community Protection) Act 2003, after "police officer" (where twice occurring) insert "or protective services officer".

(7) In clause 6(1) and (3) of Schedule 1 to the Terrorism (Community Protection) Act 2003, after "police officer" insert "or protective services officer".

Division 4—Protection of counter-terrorism intelligence

64 Definitions

In section 3 of the Terrorism (Community Protection) Act 2003—

(a) insert the following definitions—

"counter-terrorism intelligence means any information, document or other thing relating to a terrorist act or suspected terrorist act in Victoria or elsewhere, the disclosure of which could reasonably be expected to—

(a) prejudice a criminal investigation, including by revealing intelligence-gathering methodologies, investigative techniques or technologies, or covert practices; or

(b) enable the discovery of the existence or identity of a confidential source of information relevant to law enforcement; or



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(c) endanger a person's life or physical safety; or

(d) threaten significant damage to infrastructure or other property; or

(e) prejudice national security;

counter-terrorism intelligence protection order has the meaning given in section 25(1);

protected counter-terrorism intelligence means counter-terrorism intelligence that is the subject of a counter-terrorism intelligence protection order;

protection application means an application under section 25 for a counter-terrorism intelligence protection order;

substantive application means an application for—

(a) a preventative detention order; or

(b) an extension of a preventative detention order; or

(c) a revocation or variation of a preventative detention order; or

(d) a prohibited contact order; or

(e) a revocation or variation of a prohibited contact order;";

(b) the definition of counter-terrorism information is repealed.

65 Application of Part 1A

In section 4C of the Terrorism (Community Protection) Act 2003—

(a) in paragraph (f), for "order." substitute "order; or";



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(b) after paragraph (f) insert—

"(g) a counter-terrorism intelligence protection order.".


After section 13E(1A) the Terrorism (Community Protection) Act 2003 insert—

"(1B) The Supreme Court may decide that it is satisfied as required by subsection (1) only if it is satisfied by acceptable, cogent evidence that is of sufficient weight to justify making a preventative detention order.".

67 Extension of preventative detention order

After section 13I(6) the Terrorism (Community Protection) Act 2003 insert—

"(6A) The Supreme Court may decide that it is satisfied as required by subsection (6) only if it is satisfied by acceptable, cogent evidence that is of sufficient weight to justify the extension or further extension.".

68 Basis for applying for, and making, prohibited contact order

After section 13KA(2) the Terrorism (Community Protection) Act 2003 insert—

"(2A) The Supreme Court may decide that it is satisfied as set out in subsection (4) only if it is satisfied by acceptable, cogent evidence that is of sufficient weight to justify making a prohibited contact order.".



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69 Application by police for revocation or variation of preventative detention order or prohibited contact order

After section 13O(7B) the Terrorism (Community Protection) Act 2003 insert—

"(7C) The Supreme Court may decide that it is satisfied as required by subsection (3)(b) or (7)(b) only if it is satisfied by acceptable, cogent evidence that is of sufficient weight to justify revoking or varying the order.".

70 Nature of proceedings

Section 13ZP(3) of the Terrorism (Community Protection) Act 2003 is repealed.

71 Part 5 substituted

For Part 5 of the Terrorism (Community Protection) Act 2003 substitute—

"Part 5—Protection of counter-terrorism intelligence

Division 1—General protection in legal proceedings

23 General protection of counter-terrorism intelligence in legal proceedings

(1) If, in any legal proceeding, an issue arises relating to the disclosure of any information, document or other thing and (but for this section) a person would be entitled to require another person to disclose that information, document or thing, the court may excuse that person from the requirement to disclose if satisfied that—

(a) the information, document or thing is counter-terrorism intelligence; and



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(b) the public interest in preserving secrecy or confidentiality outweighs the public interest in disclosure.

(2) Without limiting the matters the court may consider for the purposes of subsection (1), the court must consider the following—

(a) the importance of the information, document or thing in the legal proceeding;

(b) if the legal proceeding is a criminal proceeding, whether the party seeking disclosure is the accused or the prosecutor;

(c) if the legal proceeding is a criminal appeal proceeding, including an application for leave to appeal, whether the party seeking disclosure was the accused or the prosecutor in the judgment or order from which the appeal is brought;

(d) the nature of the offence, cause of action or defence to which the information, document or thing relates, and the nature of the subject matter of the proceeding;

(e) the likely effect of disclosure of the information, document or thing and the means available to limit its publication;

(f) whether the substance of the information, document or thing has already been disclosed;

(g) if the proceeding is a criminal proceeding and the party seeking disclosure is the accused, whether the order is to be made subject to the



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condition that the prosecution be stayed.

(3) In deciding whether to excuse a person under this section from a requirement to disclose, the court may inform itself in any way it thinks fit.


court has the same meaning as in the Evidence (Miscellaneous Provisions) Act 1958;

disclosure includes disclosure, whether by order, subpoena or otherwise, by the—

(a) inspection, production or discovery of documents; and

(b) giving of evidence; and

(c) answering of interrogatories; and

(d) provision of particulars;

legal proceeding has the same meaning as in the Evidence (Miscellaneous Provisions) Act 1958.

Note

Under the Evidence (Miscellaneous Provisions) Act 1958, legal proceeding includes a civil or criminal proceeding before a court, an inquest held by a coroner and a Royal Commission. Also under that Act, court includes a person acting judicially.

24 Court may inspect documents

If a question arises under section 23 in relation to a document, the court may order the production of the document and may inspect it for the purpose of determining the question.



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Division 2—Protection in applications under this Act

25 Application for counter-terrorism intelligence protection order

(1) If an authorised police officer has made a substantive application on or after the commencement day, an authorised police officer may apply to the Supreme Court for an order (a counter-terrorism intelligence protection order) in relation to any information, document or other thing related to that substantive application that the authorised police officer making the protection application believes on reasonable grounds is counter-terrorism intelligence.

(2) A protection application must—

(a) be in writing; and

(b) state the grounds on which the order is sought; and

(c) be accompanied by an affidavit that addresses the grounds on which the order is sought.


commencement day means the day on which section 71 of the Justice Legislation Amendment (Terrorism) Act 2018 comes into operation.

26 Public Interest Monitor to be notified of protection application

The applicant for a counter-terrorism intelligence protection order must notify a Public Interest Monitor of the protection application in accordance with the



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regulations under the Public Interest Monitor Act 2011.

27 Determining protection application

(1) After hearing a protection application, the Supreme Court may make a counter-terrorism intelligence protection order in respect of all or any part of the information, document or other thing to which the application relates if the Court is satisfied that—

(a) the information, document, thing or part is counter-terrorism intelligence; and

(b) the reasons for maintaining the confidentiality of the counter-terrorism intelligence outweigh any prejudice or unfairness to the subject of the substantive application.

(2) If the Supreme Court makes a counter-terrorism intelligence protection order, the applicant in the substantive application must serve on the subject of the substantive application or a representative of the subject—

(a) a copy of the order; and

(b) a summary of the protected counter-terrorism intelligence to the extent possible without compromising the reasons for which the intelligence is protected.

(3) If the Supreme Court declines to make a counter-terrorism intelligence protection order in respect of all or any part of the information, document or other thing—



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(a) the applicant in the substantive application is not obliged to adduce that information, document, other thing or part in evidence in the proceeding on the substantive application; and

(b) the applicant in the substantive application may withdraw the substantive application.

(4) The applicant in the substantive application may also withdraw the substantive application if the Supreme Court at any time during the proceeding on the substantive application makes an order for discovery of all or any part of the information, document or other thing that was the subject of the protection application, whether or not a counter-terrorism intelligence protection order was made.

28 Court may dispense with hearing by consent

Despite section 27(1), if the parties to a protection application consent, the Supreme Court may determine the application without a hearing, on the basis of the parties' written submissions.

29 Admissibility of protected counter-terrorism intelligence

To avoid doubt, the making of a counter-terrorism intelligence protection order is not determinative of the admissibility of the protected counter-terrorism intelligence in evidence in the proceeding on the substantive application.



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Division 3—Procedural requirements in protection applications and substantive

applications involving protected counter-terrorism intelligence

30 Application of Division

(1) This Division applies to—

(a) a proceeding on a protection application; and

(b) any part of a proceeding on a substantive application in which protected counter-terrorism intelligence is sought to be admitted, or is adduced, in evidence.

(2) In this Division, the part of proceedings referred to in subsection (1)(b) is called the relevant part.

31 Applications to be heard in closed court unless otherwise ordered

(1) Unless the Supreme Court orders otherwise, a protection application or the relevant part of a proceeding on a substantive application must be heard in closed court.

(2) The Supreme Court may make an order under subsection (1) if it considers it appropriate to do so.

(3) If the protection application or relevant part is heard in closed court, the only persons who may be present at the hearing are—

(a) the authorised police officer who made the protected application or substantive application (as the case requires); and

(b) any lawyers representing the authorised police officer referred to in paragraph (a); and



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(c) a special counsel appointed under section 32; and

(d) any witnesses who may be called to give evidence; and

(e) the presiding judge and any court staff necessary for the hearing; and

(f) the Public Interest Monitor.

(4) If the protection application or relevant part is heard in closed court, the Supreme Court—

(a) must cause a notice to be posted on a door of the court containing the matters set out in subsection (5) and ensure that the notice remains so posted at all times the hearing is held in closed court; and

(b) may cause a copy of the notice to be posted in another conspicuous place where notices are usually posted at the court.

(5) The notice must state—

(a) that the hearing is being held in closed court; and

(b) who may be present at the hearing; and

(c) that it is an offence for anyone else to enter or attempt to enter the place where the hearing is being held.

Note

See section 35 for the offence referred to in paragraph (c).

(6) If a notice is posted under subsection (4)(a) in relation to a hearing, the Supreme Court must confirm on the transcript of the hearing—



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(a) that a notice was posted and remained so posted at all times the hearing was held in closed court; and

(b) the content of the notice.

(7) The authorised police officer who made the protection application or substantive application may withdraw the application if the Supreme Court makes an order under subsection (1).

32 Appointment of special counsel

(1) The Supreme Court may appoint a suitably qualified person as special counsel to represent the interests of the subject of the substantive application at the hearing of a protection application and the relevant part of the proceeding on the substantive application.

(2) A person is suitably qualified for appointment as special counsel if—

(a) the person is a barrister within the meaning of the Legal Profession Uniform Law (Victoria); and

(b) in the opinion of the Supreme Court, the person has the appropriate skills and ability to represent the interests of the subject of the substantive application; and

(c) the person has the security clearance determined by the Supreme Court to be appropriate in the circumstances.

(3) The Supreme Court may appoint another suitably qualified person as special counsel to represent the interests of the subject of the substantive application at the hearing of the relevant part of the proceeding on



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the substantive application if the person appointed under subsection (1) is unable to act in relation to that hearing or for any other reason the Supreme Court considers it appropriate to do so.

33 Role of special counsel

(1) If a special counsel is appointed under section 32(1)—

(a) before the hearing of the protection application the applicant must serve on the special counsel—

(i) a summary of the grounds on which the protection application and the substantive application are made and of the evidence on which the applicant seeks to rely to the extent possible without revealing any relevant information; and

(ii) after the special counsel has had an opportunity to communicate with the subject of the substantive application, or a representative of the subject, under paragraph (b)—a copy of the protection application, any affidavit required to be given to the Supreme Court in support of the protection application and the relevant information; and

(b) at any time before the special counsel obtains any relevant information, the special counsel may communicate with the subject of the substantive application, or a representative of the subject, for the purposes of obtaining



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information from the subject or representative in relation to the protection application or the substantive application; and

(c) at any time after the special counsel obtains any relevant information, the special counsel must not communicate with the subject of the substantive application or a representative of the subject.

(2) If a special counsel is appointed under section 32(3)—

(a) before the hearing of the relevant part of the proceeding on the substantive application the applicant must serve on the special counsel—

(i) a summary of the grounds on which the protection application and the substantive application were made and of the evidence on which the applicant seeks to rely in the substantive application to the extent possible without revealing any protected counter-terrorism intelligence; and

(ii) after the special counsel has had an opportunity to communicate with the subject of the substantive application, or a representative of the subject, under paragraph (b)—a copy of the protected counter-terrorism intelligence; and

(b) at any time before the special counsel obtains any protected counter-terrorism intelligence, the special counsel may communicate with the subject of the



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substantive application, or a representative of the subject, for the purposes of obtaining information from the subject or representative in relation to the substantive application; and

(c) at any time after the special counsel obtains any protected counter-terrorism intelligence, the special counsel must not communicate with the subject of the substantive application or a representative of the subject.

(3) A special counsel appointed under section 32—

(a) must not perform the role of special counsel in a manner that compromises the confidentiality of all or any part of the relevant information or the protected counter-terrorism intelligence (as the case requires); and

(b) does not incur any liability to the subject of the substantive application in respect of anything done or omitted to be done by the special counsel in performing the role of special counsel.

(4) Legal professional privilege or client legal privilege applies to a communication between a special counsel appointed under section 32 and the subject of the substantive application or a representative of the subject in the same way as it would apply to a communication between a lawyer acting for the subject and the subject.

(5) The Supreme Court may direct that a special counsel appointed under section 32 may be present as an observer at any hearing of the



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substantive application other than the hearing of the relevant part.Note

Special counsel is entitled to be present at the hearing of the relevant part—see section 31(3)(c).

(6) The applicant for a counter-terrorism intelligence protection order must fully disclose to a special counsel appointed under section 32(1) all matters of which the applicant is aware that are adverse to the protection application.

(7) The applicant for a counter-terrorism intelligence protection order must not knowingly or recklessly fail to comply with subsection (6).

Penalty: Level 9 imprisonment (6 months maximum) or a level 9 fine (60 penalty units maximum) or both.


relevant information, in relation to a protection application, means any information, or the original or a copy of any document or other thing, that is the subject of the application.

34 Adjournment to allow special counsel to communicate with subject

(1) The Supreme Court may adjourn a proceeding on a protection application or the relevant part of a proceeding on a substantive application to allow a special counsel appointed under section 32 to communicate with the subject of the substantive application, or a representative of the subject, in accordance with section 33.



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(2) Subsection (1) does not limit any other power of the Supreme Court to adjourn a proceeding.

Division 4—Offences35 Offence to enter closed court

(1) A person not referred to in section 31(3) who knows, or is reckless as to the fact that, a hearing is being held in closed court under section 31 must not enter the place where the hearing is being held.

Penalty: Level 6 imprisonment (5 years maximum) or a level 6 fine (600 penalty units maximum) or both.

(2) If—

(a) a person is charged with an offence against subsection (1); and

(b) the prosecution proves that a notice was posted in accordance with section 31(4)(a) at the time of the alleged offence—

the person is presumed to have known, or to have been reckless as to the fact, that the hearing was being held in closed court unless the person presents or points to evidence that the person did not know and was not reckless as to that fact.

36 Offence to publish report of hearing

(1) Unless the Supreme Court orders otherwise, a person must not publish a report of a hearing of a protection application or the relevant part of a proceeding on a substantive application or any information derived from such a hearing.



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Penalty: In the case of a natural person, level 6 imprisonment (5 years maximum) or a level 6 fine (600 penalty units maximum) or both;

In the case of a body corporate, a level 2 fine (3000 penalty units maximum).

(2) The Supreme Court may make an order under subsection (1) if the Court considers it appropriate to do so.

(3) In this section, relevant part has the same meaning as in section 30(2).

37 Disclosure, receipt or solicitation of protected counter-terrorism intelligence

(1) Subject to subsection (2), a person must not disclose, receive or solicit any information, document or other thing if the person knows or is reckless as to the fact that the information, document or other thing is protected counter-terrorism intelligence.



(2) Subsection (1) does not apply to—

(a) disclosure, receipt or solicitation of protected counter-terrorism intelligence that was in the public domain at the time of the disclosure, receipt or solicitation; or



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(b) disclosure, receipt or solicitation of protected counter-terrorism intelligence by a law enforcement officer in the performance of duty; or

(c) disclosure of protected counter-terrorism intelligence by a person to a lawyer, or the receipt or solicitation of protected counter-terrorism intelligence by a lawyer from a person, in the course of the person consulting the lawyer for legal advice; or

(d) disclosure, receipt or solicitation of protected counter-terrorism intelligence that is published in accordance with an order of the Supreme Court under section 36(1); or

(e) disclosure, receipt or solicitation of protected counter-terrorism intelligence that is required, authorised or permitted by or under this Act.

(3) A person does not commit an offence against subsection (1) if—

(a) the person presents or points to evidence that suggests a reasonable possibility that a circumstance referred to in subsection (2) existed at the time of the alleged commission of the offence; and

(b) the contrary is not proved (beyond reasonable doubt) by the prosecution.

37A Disclosure, receipt or solicitation of other confidential material

(1) This section applies to any information, document or other thing that was the subject



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of a protection application that was not granted by the Supreme Court.

(2) Subject to subsection (3), a person must not disclose, receive or solicit any information, document or other thing to which this section applies if the person knows or is reckless as to the fact that the information, document or other thing is information or a document or other thing to which this section applies.



(3) Subsection (2) does not apply to—

(a) disclosure, receipt or solicitation of any information, document or other thing that was in the public domain at the time of the disclosure, receipt or solicitation; or

(b) disclosure, receipt or solicitation of any information, document or other thing that has been adduced in evidence by or on behalf of the applicant in relation to a substantive application; or

(c) disclosure, receipt or solicitation of any information, document or other thing by a law enforcement officer in the performance of duty; or



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(d) disclosure of any information, document or other thing by a person to a lawyer, or the receipt or solicitation of any information, document or other thing by a lawyer from a person, in the course of the person consulting the lawyer for legal advice; or

(e) disclosure, receipt or solicitation of any information, document or other thing that is published in accordance with an order of the Supreme Court under section 36(1); or

(f) disclosure, receipt or solicitation of any information, document or other thing that is required, authorised or permitted by or under this Act.

(4) A person does not commit an offence against subsection (2) if—

(a) the person presents or points to evidence that suggests a reasonable possibility that a circumstance referred to in subsection (3) existed at the time of the alleged commission of the offence; and

(b) the contrary is not proved (beyond reasonable doubt) by the prosecution.".

Division 5—Oversight by the Victorian Inspectorate and annual reporting

72 Definitions

In section 3(1) of the Terrorism (Community Protection) Act 2003 insert the following definition—



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"member of Victoria Police personnel has the same meaning as in the Victoria Police Act 2013;".

73 Report to the Victorian Inspectorate

(1) In the heading to section 11 of the Terrorism (Community Protection) Act 2003, for "court" substitute "the Victorian Inspectorate ".

(2) In section 11(1) of the Terrorism (Community Protection) Act 2003, for "Supreme Court" substitute "Victorian Inspectorate".

74 No publication of report of proceeding

(1) In section 12(b) of the Terrorism (Community Protection) Act 2003, for "(a); or" substitute "(a)—".

(2) Section 12(c) of the Terrorism (Community Protection) Act 2003 is repealed.

75 Section 13 repealed

Section 13 of the Terrorism (Community Protection) Act 2003 is repealed.

76 Section 13ZR repealed

Section 13ZR of the Terrorism (Community Protection) Act 2003 is repealed.

77 Section 21M repealed

Section 21M of the Terrorism (Community Protection) Act 2003 is repealed.



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78 New Parts 6 and 6A inserted


"Part 6—Role of Victorian Inspectorate

37B Regular inspections of records of Victoria Police

(1) The Victorian Inspectorate must inspect the records of Victoria Police no later than 6 months after the commencement of this section, and after that initial inspection at intervals of no longer than 6 months, in order to ascertain the extent to which police officers and protective services officers have complied with the following since the last inspection under this section of the records of Victoria Police—

(a) Part 2 (Covert search warrants);

(b) Part 2AA (Preventative police detention);

(c) Part 3A (Special police powers).

(2) The Victorian Inspectorate, at any time, may inspect records of Victoria Police in order to ascertain the extent to which police officers and protective services officers have complied, during any period, with Part 2, 2AA or 3A.

(3) The Victorian Inspectorate must notify, in writing, the Chief Commissioner of the date or dates on which an inspection under subsection (1) will be conducted at least 7 days before the date or dates of inspection.



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(4) After notifying the Chief Commissioner in accordance with subsection (3), the Victorian Inspectorate may enter any premises occupied by Victoria Police on the date or dates specified in the notice under that subsection for the purposes of an inspection under subsection (1).

(5) In addition, after notifying the Chief Commissioner, the Victorian Inspectorate may enter at any reasonable time premises occupied by Victoria Police for the purposes of an inspection under subsection (2).

(6) On entry into premises occupied by Victoria Police under subsection (4) or (5), the Victorian Inspectorate—

(a) subject to section 37C(2), is entitled to have full and free access to all records of Victoria Police at, or accessible from, the premises that are relevant to the inspection; and

(b) subject to section 37C(3), may require a member of Victoria Police personnel at the premises to give the Victorian Inspectorate any information that the Victorian Inspectorate considers necessary, being information that is in the member's possession, or to which the member has access, and that is relevant to the inspection.

(7) The Chief Commissioner must ensure that members of Victoria Police personnel give the Victorian Inspectorate any assistance the Victorian Inspectorate reasonably requires to enable the Victorian Inspectorate to perform a function, or exercise a power, under subsection (1), (2), (4), (5) or (6).



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record includes part of a record.

37C The Inspector and authorised Victorian Inspectorate officers may perform or exercise inspection functions and powers

(1) Subject to subsections (2) and (3), the Inspector or an authorised Victorian Inspectorate officer may, on behalf of the Victorian Inspectorate, perform a function, or exercise a power, of the Victorian Inspectorate under section 37B(1), (2), (4), (5) or (6).

(2) The Inspector or an authorised Victorian Inspectorate officer must not, on behalf of the Victorian Inspectorate, inspect, under section 37B, a record that is counter-terrorism intelligence unless the Inspector or authorised Victorian Inspectorate officer has been given a security clearance at an appropriate level which enables the Inspector or authorised Victorian Inspectorate officer to inspect that record.

(3) A member of Victoria Police personnel is not required, under section 37B, to give the Inspector or an authorised Victorian Inspectorate officer information that is counter-terrorism intelligence unless the Inspector or authorised Victorian Inspectorate officer has been given a security clearance at an appropriate level which enables the Inspector or authorised Victorian Inspectorate officer to be given that information.

(4) On the Victorian Inspectorate notifying the Chief Commissioner of the date or dates of inspection under section 37B(3), the Chief



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Commissioner, as soon as practicable after receiving that notification, must advise, in writing, the Victorian Inspectorate as to the appropriate level of security clearance required for the Inspector or an authorised Victorian Inspectorate officer to enable them to, under section 37B—

(a) inspect a record or class of records that is counter-terrorism intelligence; or

(b) receive information that is counter-terrorism intelligence.

(5) The Victorian Inspectorate may authorise in writing a Victorian Inspectorate Officer to perform a function, or exercise a power, under section 37B(1), (2), (4), (5) or (6) on its behalf.


authorised Victorian Inspectorate officer means a Victorian Inspectorate Officer authorised under subsection (5);

Inspector has the same meaning as in the Victorian Inspectorate Act 2011;

record includes part of a record;

Victorian Inspectorate Officer has the same meaning as in the Victorian Inspectorate Act 2011, but does not include the Inspector within the meaning of that Act.

37D Reports to Parliament on investigations by Victorian Inspectorate

(1) The Victorian Inspectorate must make a report to Parliament at intervals of 6 months on the results of each inspection conducted during that period under section 37B.



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(2) Before the Victorian Inspectorate makes a report to Parliament under subsection (1), the Victorian Inspectorate must—

(a) give the Chief Commissioner a copy of any report under subsection (1); and

(b) give the Chief Commissioner a reasonable opportunity to provide an opinion on the report in accordance with subsection (3).

(3) The Chief Commissioner must advise the Victorian Inspectorate of any information included in a copy of a report received under subsection (2) that, in the Chief Commissioner's opinion, should be excluded from the report before the report is laid before Parliament because the information could reasonably be expected to—

(a) endanger a person's safety; or

(b) prejudice an investigation or prosecution; or

(c) compromise operational activities or methodologies of Victoria Police.

(4) The Victorian Inspectorate must exclude from a copy of the report to be laid before the Parliament under subsection (6) information on which the Victorian Inspectorate has received advice under subsection (3).

(5) The Victorian Inspectorate must—

(a) cause the report to be transmitted to each House of the Parliament as soon as practicable after 1 January and 1 July each year; and

(b) give a copy of the report to the Minister at the same time as it is transmitted to



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each House.

(6) The clerk of each House of the Parliament must cause the report to be laid before the House on the day on which it is received or on the next sitting day of that House.

Part 6A—Annual reporting37E Definitions

In this Part—

covert search warrant means a warrant issued under Part 2;

covert search warrant information means the following information in respect of a financial year—

(a) the number of applications for a covert search warrant during that year;

(b) the number of covert search warrants issued during that year;

(c) the number of telephone applications under section 10 during that year;

(d) the number of applications under Part 2 that were refused during that year;

(e) the number of premises covertly entered during that year under a covert search warrant;

(f) the number of occasions on which items were seized from premises during that year under a covert search warrant;

(g) the number of occasions on which items were placed in premises



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during that year under a covert search warrant;

(h) the number of occasions on which electronic equipment was operated by way of remote entry during that year under a covert search warrant;

detain and decontaminate information means the following information in respect of each financial year—

(a) the number of authorisations given under Part 3 during that year;

(b) the terms of each authorisation mentioned in paragraph (a) and the period during which it had effect;

(c) a summary of the grounds that were relied on for the giving of an authorisation mentioned in paragraph (a);

(d) a general description of the powers exercised under an authorisation mentioned in paragraph (a) and the manner in which they were exercised;

(e) the result of the exercise of the powers mentioned in paragraph (d);

police detention decision information means the following information in respect of a financial year—

(a) the number of police detention decisions made during that year;



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(b) the period of detention of each person detained under Part 2AA;

(c) whether a person mentioned in paragraph (b) was during that year—

(i) released at the end of the maximum police detention period; or

(ii) taken into custody for the purposes of Subdivision (30A) of Division 1 of Part III of the Crimes Act 1958; or

(iii) arrested under Division 4 of Part IAA, or Part IC, of the Crimes Act 1914 of the Commonwealth; or

(iv) a protected suspect (within the meaning of Part IC of the Crimes Act 1914 of the Commonwealth); or

(v) detained under a preventative detention order before the end of the maximum police detention period;

(d) the number of persons in relation to whom a police detention decision was made who were charged with an offence against Part 5.3 of the Criminal Code of the Commonwealth during that year;



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(e) particulars of—

(i) any complaints made or referred to the Ombudsman during that year under the Ombudsman Act 1973; and

(ii) any complaints made during that year to the IBAC under section 52 of the Independent Broad-based Anti-corruption Commission Act 2011 or referred during the year to the IBAC under Part 9 of the Victoria Police Act 2013; and

(iii) any investigations during that year by the IBAC under Part 3 of the Independent Broad-based Anti-corruption Commission Act 2011—

in relation to the detention of a person under a police detention decision;

preventative detention order information means the following information in respect of a financial year—

(a) the number of applications for preventative detention orders that year;

(b) the number of preventative detention orders made during that year;



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(c) whether a person was detained under each of those orders and, if so, how long the person was detained;

(d) the number of prohibited contact order applications during that year;

(e) the number of prohibited contact orders made during that year;

(f) the number of persons in relation to whom a preventative detention order was made who were charged with an offence against Part 5.3 of the Criminal Code of the Commonwealth during that year;

(g) particulars of—

(i) any complaints made or referred to the Ombudsman during that year under the Ombudsman Act 1973; and

(ii) any complaints made to the IBAC during that year under section 52 of the Independent Broad-based Anti-corruption Commission Act 2011 or referred during the year to the IBAC under Part 9 of the Victoria Police Act 2013; and

(iii) any investigations during that year by the IBAC under Part 3 of the Independent Broad-based Anti-corruption Commission Act 2011—



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in relation to the detention of a person under a preventative detention order;

special police powers information means the following information in respect of a financial year—

(a) the number of authorisations given under Part 3A during that year;

(b) the terms of each authorisation mentioned in paragraph (a) and the period during which it had effect;

(c) whether an authorisation mentioned in paragraph (a) was given without the written approval of the Premier or, if the Premier had delegated the power to approve an interim authorisation, the Minister to whom the power was delegated, in accordance with section 21D(1A) or 21E(1A);

(d) a summary of the grounds that were relied on for the giving of an authorisation mentioned in paragraph (a);

(e) a general description of the powers exercised under an authorisation mentioned in paragraph (a) and the manner in which they were exercised;

(f) a record of which of these powers mentioned in paragraph (e) were exercised by police officers;



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(g) a record of which of these powers mentioned in paragraph (e) were exercised by protective services officers;

(h) the result of the exercise of these powers mentioned in paragraph (e).

37F Annual reports of Chief Commissioner

(1) The Chief Commissioner must submit a report to the Minister that includes the following information in respect of each financial year—

(a) covert search warrant information;

(b) detain and decontaminate information;

(c) police detention decision information;

(d) preventative detention order information;

(e) special police powers information;

(f) any other information that the Minister considers appropriate and specifies in writing to the Chief Commissioner.

(2) The report must be submitted to the Minister as soon as practicable but no later than 3 months after the end of each financial year.

(3) The Chief Commissioner must advise the Minister of any information included in the report that, in the Chief Commissioner's opinion, should be excluded from the report before the report is laid before Parliament because the information could reasonably be expected to—



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(a) endanger a person's safety; or

(b) prejudice an investigation or prosecution; or

(c) compromise operational activities or methodologies of Victoria Police.

(4) The Minister must exclude from a copy of the report to be laid before the Parliament under subsection (5) information on which the Minister has received advice under subsection (3) if the Minister is satisfied of any of the grounds under that subsection in relation to that information.

(5) The Minister must cause a copy of the report to be laid before each House of the Parliament within 12 sitting days of that House after the Minister receives it.".

Division 6—Other amendments79 Department references changed

(1) In sections 13D(7) and 13F(8) of the Terrorism (Community Protection) Act 2003, for "Human Services" substitute "Justice and Regulation".

(2) In sections 13E(8) and 13I(8) of the Terrorism (Community Protection) Act 2003, for "Justice or the Secretary to the Department of Human Services (as the case requires)" substitute "Justice and Regulation".

(3) In section 13N(6) and (8) of the Terrorism (Community Protection) Act 2003, for "Justice or the Secretary to the Department of Human Services (as the case requires)" substitute "Justice and Regulation".



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(4) In section 13O(5) and (8) of the Terrorism (Community Protection) Act 2003, for "Justice or the Secretary to the Department of Human Services (as the case requires)" substitute "Justice and Regulation".

(5) In section 13W(1) and (4) of the Terrorism (Community Protection) Act 2003, for "Justice" substitute "Justice and Regulation".

(6) In section 13WA(1) and (3) of the Terrorism (Community Protection) Act 2003, for "Human Services" substitute "Justice and Regulation".

(7) In section 13WA(9) of the Terrorism (Community Protection) Act 2003, for "Human Services" (where twice occurring) substitute "Justice and Regulation".

(8) In section 13ZJ(4) of the Terrorism (Community Protection) Act 2003, for "Department of Human Services" substitute "Department of Justice and Regulation, or the Department of Health and Human Services,".

(9) In section 13ZM(3) of the Terrorism (Community Protection) Act 2003, for "Justice or the Secretary to the Department of Human Services (as the case requires)" substitute "Justice and Regulation".

(10) In section 13ZM(4) of the Terrorism (Community Protection) Act 2003, for "Justice or the Secretary to the Department of Human Services" substitute "Justice and Regulation".



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Part 3—Amendment of Bail Act 197780 Definitions

(1) In section 3 of the Bail Act 1977 insert the following definitions—

"terrorism or foreign incursion offence means an offence against—

(a) section 4B of the Terrorism (Community Protection) Act 2003; or

(b) a provision of another State or a Territory that corresponds to section 4B of the Terrorism (Community Protection) Act 2003; or

(c) a provision of Subdivision A of Division 72 of Chapter 4 of the Criminal Code of the Commonwealth; or

(d) a provision of Part 5.3 or 5.5 of the Criminal Code of the Commonwealth; or

(e) a provision of the Crimes (Foreign Incursions and Recruitment) Act 1978 of the Commonwealth as in force before its repeal;

terrorism record—see section 3AAB;

terrorism-related order means—

(a) a control order within the meaning of Part 5.3 of the Criminal Code of the Commonwealth; or

(b) a continuing detention order within the meaning of Division 105A of Part 5.3 of the Criminal Code of the Commonwealth; or



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(c) an interim detention order within the meaning of Division 105A of Part 5.3 of the Criminal Code of the Commonwealth; or

(d) a preventative detention order within the meaning of Part 2A of the Terrorism (Community Protection) Act 2003; or

(e) a prohibited contact order within the meaning of Part 2A of the Terrorism (Community Protection) Act 2003; or

(f) an order made under a corresponding preventative detention law within the meaning of Part 2A of the Terrorism (Community Protection) Act 2003;

terrorism risk information—see section 3AAC;".

(2) In section 3 of the Bail Act 1977, for the definition of terrorist organisation substitute—

"terrorist organisation has the same meaning as in Division 102 of the Criminal Code of the Commonwealth;".

81 Surrounding circumstances

(1) For section 3AAA(m) of the Bail Act 1977 substitute—

"(m) whether the accused has expressed support for—

(i) the doing of a terrorist act; or

(ii) a terrorist organisation; or

(iii) the provision of resources to a terrorist organisation;



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(n) subject to subsection (2), whether the accused has, or has had, an association with—

(i) another person or a group that has expressed support of the kind referred to in paragraph (m); or

(ii) another person or a group that is directly or indirectly engaged in, preparing for, planning, assisting in or fostering the doing of a terrorist act; or

(iii) a terrorist organisation.".

(2) At the end of section 3AAA of the Bail Act 1977 insert—

"(2) A bail decision maker must not take into account the accused having, or having had, an association referred to in subsection (1)(n)(i), (ii) or (iii) unless the bail decision maker is satisfied that the accused knew—

(a) that the person or group had expressed support for—



(iii) the provision of resources to a terrorist organisation; or

(b) that the person or group was directly or indirectly engaged in, preparing for, planning, assisting in or fostering the doing of a terrorist act; or

(c) that the group was a terrorist organisation.".



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82 New sections 3AAB and 3AAC inserted

After section 3AA of the Bail Act 1977 insert—

"3AAB Meaning of terrorism record

For the purposes of this Act, a person has a terrorism record if the person—

(a) has been convicted of a terrorism or foreign incursion offence; or

(b) is or has been subject to a terrorism-related order.

3AAC Meaning of terrorism risk information

(1) For the purposes of this Act, terrorism risk information in respect of a person means—

(a) an assessment made by an entity specified in subsection (2) that there is a risk that the person will commit a terrorism or foreign incursion offence; and

(b) the information relied on in making that assessment.

(2) The specified entities are—

(a) the Australian Crime Commission (by whatever name described) established by the Australian Crime Commission Act 2002 of the Commonwealth; and

(b) Victoria Police; and

(c) the Australian Federal Police; and

(d) the Australian Security and Intelligence Organisation; and

(e) the Department of Justice and Regulation; and



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(f) the police force or police service of another State or a Territory; and

(g) the Department of Home Affairs of the Commonwealth; and

(h) each prescribed entity.

(3) Without limiting subsection (1)(b), the information referred to in that provision may include—

(a) information regarding the person having expressed support for—




(b) information regarding the person having, or having had, an association with—

(i) another person or a group that has expressed support of the kind referred to in paragraph (a); or


(iii) a terrorist organisation.Note

Section 8AA(4) prevents a court from having regard to information referred to in paragraph (b) unless the court is satisfied that the person knew certain matters about the person or group that the association is with. See also section 3AAA(2).".



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83 Section 3D substituted

For section 3D of the Bail Act 1977 substitute—

"3D Flow charts

(1) A flow chart in this section illustrates the key features of the decision making process to which it relates. It is intended only as a guide to the reader.

(2) Flow Chart 1 shows the process for determining which tests are to be applied in deciding whether to grant bail to a person.



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(3) Flow Chart 2 shows the process for applying the step 1—exceptional circumstances test and then the step 2—unacceptable risk test.



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(4) Flow Chart 3 shows the process for applying the step 1—show compelling reason test and then the step 2—unacceptable risk test.



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(5) Flow Chart 4 shows the process for applying the unacceptable risk test alone.

".

84 New section 4AA inserted

After section 4 of the Bail Act 1977 insert—

"4AA When 2 step tests apply

(1) The step 1—exceptional circumstances test applies to a decision of whether to grant bail to a person accused of a Schedule 1 offence.

(2) The step 1—exceptional circumstances test also applies to a decision of whether to grant bail to a person accused of a Schedule 2 offence if—

(a) the person has a terrorism record; or



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(b) the court considering whether to grant bail determines under section 8AA that there is a risk that the person will commit a terrorism or foreign incursion offence; or

(c) the offence is alleged to have been committed—

(i) while the accused was on bail for any Schedule 1 offence or Schedule 2 offence; or

(ii) while the accused was subject to a summons to answer to a charge for any Schedule 1 offence or Schedule 2 offence; or

(iii) while the accused was at large awaiting trial for any Schedule 1 offence or Schedule 2 offence; or

(iv) during the period of a community correction order made in respect of the accused for any Schedule 1 offence or Schedule 2 offence; or

(v) while the accused was otherwise serving a sentence for any Schedule 1 offence or Schedule 2 offence; or

(vi) while the accused was released under a parole order made in respect of any Schedule 1 offence or Schedule 2 offence; or

(d) the offence is an offence of conspiracy to commit, incitement to commit or attempting to commit an offence in a circumstance set out in paragraph (c).



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(3) The step 1—show compelling reason test applies to a decision of whether to grant bail to a person accused of a Schedule 2 offence if subsection (2) does not apply.

(4) The step 1—show compelling reason test also applies to a decision of whether to grant bail to a person accused of an offence that is neither a Schedule 1 offence nor a Schedule 2 offence if—


(b) the court considering whether to grant bail determines under section 8AA that there is a risk that the person will commit a terrorism or foreign incursion offence.

Note

Section 4E sets out the unacceptable risk test. In circumstances where a step 1 test applies, section 4D provides that the unacceptable risk test will apply as a step 2 test. However, under section 4E, the unacceptable risk test applies even in circumstances where no step 1 test applies.".

85 Step 1—exceptional circumstances test

(1) In the heading to section 4A of the Bail Act 1977, for "Schedule 1 offences—step" substitute "Step".

(2) For section 4A(1) of the Bail Act 1977 substitute—

"(1) This section applies if, under section 4AA(1) or (2), the step 1—exceptional circumstances test applies to a decision of whether to grant bail.

(1A) The bail decision maker must refuse bail unless satisfied that exceptional circumstances exist that justify the grant of bail.".



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86 Section 4B repealed

Section 4B of the Bail Act 1977 is repealed.

87 Step 1—show compelling reason test

(1) In the heading to section 4C of the Bail Act 1977, for "Schedule 2 offences—step" substitute "Step".

(2) For section 4C(1) of the Bail Act 1977 substitute—

"(1) This section applies if, under section 4AA(3) or (4), the step 1—show compelling reason test applies to a decision of whether to grant bail.

(1A) The bail decision maker must refuse bail unless satisfied that a compelling reason exists that justifies the grant of bail.".

88 Step 2—unacceptable risk test

(1) In the heading to section 4D of the Bail Act 1977, for "Schedule 2 offences—step" substitute "Step".

(2) For section 4D(1) of the Bail Act 1977 substitute—

"(1) A bail decision maker must apply the unacceptable risk test if—

(a) at step 1 (section 4A) the bail decision maker is satisfied that exceptional circumstances exist that justify the grant of bail for a person; or

(b) at step 1 (section 4C) the bail decision maker is satisfied that a compelling reason exists that justifies the grant of bail for a person.".



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"8AA Court to make preliminary determination if terrorism risk alleged


(a) a court is considering whether to grant bail to a person who is accused of an offence (other than a person arrested on an enforcement warrant issued under the Fines Reform Act 2014); and

(b) the step 1—exceptional circumstances test does not apply to that decision by operation of section 4AA(2)(a), (c) or (d); and

(c) the prosecutor—

(i) states that the prosecutor has terrorism risk information in respect of the accused; and

(ii) alleges that this information shows that there is a risk that the accused will commit a terrorism or foreign incursion offence.

Notes

1 If a prosecutor makes such an allegation before a bail decision maker other than a court, that bail decision maker cannot grant bail. See sections 10(5AA) and 10A(5AA).

2 See section 4AA(1) and (2) for when the step 1—exceptional circumstances test applies.



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(2) Before determining whether to grant bail, the court must determine whether there is a risk that the accused will commit a terrorism or foreign incursion offence.Note

If the court determines that there is such a risk, a different step 1 test applies to the decision of whether to grant bail. See section 4AA(2)(b) and (4)(b).

(3) For the purposes of subsection (2), but subject to subsection (4), the court must have regard to any terrorism risk information provided to the court.

(4) The court must not have regard to terrorism risk information regarding the accused having, or having had, an association referred to in section 3AAA(1)(n)(i),(ii) or (iii) unless the court is satisfied that the accused knew—






(c) that the group was a terrorist organisation.

(5) Nothing in this section prevents the court from considering, under section 4E, whether there is an unacceptable risk an accused would, if released on bail, commit a terrorism or foreign incursion offence.".



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90 Power of police officer, sheriff or authorised person to grant or refuse bail

(1) For the Notes at the foot of section 10(5) of the Bail Act 1977 substitute—"Note

Sections 13, 13AA and 13A specify circumstances in which only a court may grant bail. These circumstances relate to—

certain instances in which the step 1—exceptional circumstances test applies;

certain terrorism or foreign incursion offences;

accused persons who have a terrorism record;

persons accused of certain Schedule 2 offences who are already on 2 or more undertakings of bail in relation to other indictable offences.".

(2) After section 10(5) of the Bail Act 1977 insert—

"(5AA) The bail decision maker is prohibited from granting bail if the prosecutor—

(a) states that the prosecutor has terrorism risk information in respect of the accused; and

(b) alleges that this information shows that there is a risk that the accused will commit a terrorism or foreign incursion offence.".

(3) In section 10(5A) of the Bail Act 1977—

(a) after "prohibited by" insert "subsection (5AA) or";

(b) for "section 13" substitute "section 13, 13AA".



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91 Power of bail justice to grant or refuse bail

(1) For the Notes at the foot of section 10A(5) of the Bail Act 1977 substitute—"Note

Sections 13, 13AA and 13A specify circumstances in which only a court may grant bail. These circumstances relate to—

certain instances in which the step 1—exceptional circumstances test applies;

certain terrorism or foreign incursion offences;

accused persons who have a terrorism record;

persons accused of certain Schedule 2 offences who are already on 2 or more undertakings of bail in relation to other indictable offences.".

(2) After section 10A(5) of the Bail Act 1977 insert—

"(5AA) The bail justice is prohibited from granting bail if the prosecutor—

(a) states that the prosecutor has terrorism risk information in respect of the accused; and

(b) alleges that this information shows that there is a risk that the accused will commit a terrorism or foreign incursion offence.

(5AAB) If the bail justice is prohibited by subsection (5AA) or section 13, 13AA or 13A from granting bail to the person, the bail justice must refuse to consider whether to grant or refuse bail.Note

Section 10B requires that the informant must bring the person before a court as soon as practicable.".



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92 New section 10B inserted

After section 10A of the Bail Act 1977 insert—

"10B Informant must bring person to court if bail justice prohibited from granting bail

(1) This section applies if a bail justice is prohibited by section 10A(5AA), 13, 13AA or 13A from granting bail to a person.Note

Section 10A(5AAB) requires that the bail justice must refuse to consider whether to grant or refuse bail in these circumstances.

(2) The informant must cause the person to be brought before a court as soon as practicable.".

93 Power of court to grant or refuse bail

(1) In section 12(1) of the Bail Act 1977, for "10A(6)" substitute "10A(5AAB) or (6)".

(2) For the Note at the foot of section 12(3) of the Bail Act 1977 substitute—"Note

Section 13(1) and (2) set out circumstances in which only the Supreme Court, or a court on committing a person to trial for murder, may grant bail.".

(3) For section 12(3A) of the Bail Act 1977 substitute—

"(3A) A court that grants bail for a person accused of an offence must record on the remand warrant, file or other papers—

(a) consent to the person being bailed; and

(b) the amount of any surety or sureties; and

(c) any conditions of bail.".



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94 Section 12A substituted

For section 12A of the Bail Act 1977 substitute—

"12A When bail decision maker must state reasons for granting bail

(1) This section applies if a bail decision maker grants bail in circumstances where, under section 4AA—

(a) the step 1—exceptional circumstances test applies; or

(b) the step 1—show compelling reason test applies.

(2) If the bail decision maker is a court, the court must include in the order granting bail a statement of reasons for granting bail.

(3) Otherwise, the bail decision maker must record and transmit a statement of reasons as required by the regulations.".

95 Treason, murder, certain other offences

(1) For the heading to section 13 of the Bail Act 1977 substitute—

"Treason, murder, certain other offences".

(2) For section 13(3), (4) and (5) of the Bail Act 1977 substitute—

"(3) Subject to subsection (4), only a court may grant bail to a person accused of any other offence to which the step 1—exceptional circumstances test applies under section 4AA(1) or (2).

(4) Subsection (3) does not apply if the step 1—exceptional circumstances test applies only because of section 4AA(2)(c) or (d) and—



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(a) the accused person is a child, a vulnerable adult or an Aboriginal person; or

(b) the offence to which section 4AA(2)(c) or (d) relates is—

(i) an offence that is referred to in item 1 or 30 of Schedule 2 (and not referred to in any other item of Schedule 2); or

(ii) an offence of conspiracy to commit, incitement to commit, or attempting to commit an offence referred to in subparagraph (i).

(5) Only a court may grant bail to a person accused of an offence against—

(a) a provision of Subdivision A of Division 72 of Chapter 4 of the Criminal Code of the Commonwealth; or

(b) a provision of Part 5.3 or 5.5 of the Criminal Code of the Commonwealth.

Note

Section 15AA of the Crimes Act 1914 of the Commonwealth contains restrictions on the granting of bail for certain Commonwealth offences.".

(3) Section 13(6) of the Bail Act 1977 is repealed.



"13AA Accused with terrorism record

Only a court may grant bail to a person who has a terrorism record, irrespective of the offence of which the person is accused.".



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97 Schedule 1 amended

(1) In the heading to Schedule 1 to the Bail Act 1977, for "Offences—exceptional circumstances" substitute "Schedule 1 offences".

(2) After the heading to Schedule 1 to the Bail Act 1977 insert—"Notes

1 Under section 4AA(1), a person who is accused of an offence in this Schedule will be subject to the exceptional circumstances test.

2 However, section 4AA(2) provides that, in certain circumstances, a person who is accused of an offence in Schedule 2 will also be subject to the exceptional circumstances test, and not the show compelling reason test.".

(3) In Schedule 1 to the Bail Act 1977, item 3 is repealed.

98 Schedule 2 amended

(1) In the heading to Schedule 2 to the Bail Act 1977, for "Offences—show compelling reason" substitute "Schedule 2 offences".

(2) After the heading to Schedule 2 to the Bail Act 1977 insert—"Note

Section 4AA(2) and (3) set out whether a person who is accused of an offence in this Schedule will be subject to the exceptional circumstances test or the show compelling reason test.".

99 Transitional provisions

At the end of section 34 of the Bail Act 1977 insert—

"(20) An amendment made to this Act by a provision of Part 3 of the Justice Legislation Amendment (Terrorism) Act 2018 applies to an application made, or



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an appeal commenced, under this Act on or after the commencement of that provision, regardless of when the offence is alleged to have been committed.".



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Part 4—Amendment of Children, Youth and Families Act 2005

Division 1—Terrorism risk information100 Definitions

In section 3(1) of the Children, Youth and Families Act 2005 insert the following definitions—






(e) a provision of the Crimes (Foreign Incursions and Recruitment) Act 1978 of the Commonwealth as in force before its repeal;

terrorism record has the meaning given in section 3A;



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terrorism risk information has the meaning given in section 3B;

terrorist act has the same meaning as in the Terrorism (Community Protection) Act 2003;

terrorist organisation has the same meaning as in Division 102 of the Criminal Code of the Commonwealth;".



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101 New sections 3A and 3B inserted

After section 3 of the Children, Youth and Families Act 2005 insert—

"3A Meaning of terrorism record




3B Meaning of terrorism risk information











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(e) the Department of Justice and Regulation; and













Section 461A prevents the Youth Parole Board from having regard to information referred to in paragraph (b) for certain purposes unless satisfied that the person knew certain matters about the person or group that the association is with.".



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102 New Division 1AA inserted in Part 5.6

After the heading to Part 5.6 of the Children, Youth and Families Act 2005 insert—

"Division 1AA—Use of terrorism risk information

461A Limitation on Youth Parole Board's consideration of terrorism risk information

In considering whether to exercise a power under this Part, the Youth Parole Board must not have regard to terrorism risk information regarding a person having, or having had, an association with another person or a group referred to in section 3B(3)(b)(i), (ii) or (iii) unless the Youth Parole Board is satisfied that the person knew—

(a) that the other person or group had expressed support for—




(b) that the other person or group was directly or indirectly engaged in, preparing for, planning, assisting in or fostering the doing of a terrorist act; or




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103 New Part 5.10 inserted

At the end of Chapter 5 of the Children, Youth and Families Act 2005 insert—

"Part 5.10—Sharing of terrorism risk information

492C What is the permitted purpose for sharing information under this Part?

Terrorism risk information in respect of a person may be shared under this Part for the purpose of informing a decision relating to—

(a) parole of the person; or

(b) bail of the person; or

(c) the care, control or management of the person while they are remanded in custody or subject to a sentence.

492D Department of Justice and Regulation may disclose terrorism risk information

(1) A person specified in subsection (2) may, for the purpose set out in section 492C, disclose terrorism risk information to—

(a) a risk assessment entity; or

(b) the Youth Parole Board.

(2) The specified persons are—

(a) the Secretary to the Department of Justice and Regulation; and

(b) a person employed in the Department of Justice and Regulation under Part 3 of the Public Administration Act 2004.



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492E Youth Parole Board may disclose terrorism risk information

The following persons may, for the purpose set out in section 492C, disclose terrorism risk information to the Department of Justice and Regulation—

(a) a member of the Youth Parole Board;

(b) the secretary of the Youth Parole Board.".

Division 2—Parole104 Meaning of terrorism risk information

In the Note at the foot of section 3B(3) of the Children, Youth and Families Act 2005, for "Section 461A prevents" substitute "Sections 457A and 461A prevent".


After the heading to Division 5 of Part 5.5 of the Children, Youth and Families Act 2005 insert—

"457A Limitation on Youth Parole Board's consideration of terrorism risk information

In considering whether to make a determination or order under this Division, the Youth Parole Board must not have regard to terrorism risk information regarding a person having, or having had, an association with another person or a group referred to in section 3B(3)(b)(i), (ii) or (iii) unless the Board is satisfied that the person knew—

(a) that the other person or group had expressed support for—




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(b) that the other person or group was directly or indirectly engaged in, preparing for, planning, assisting in or fostering the doing of a terrorist act; or


457B Provision of terrorism risk information for purposes of this Division

The Secretary to the Department of Justice and Regulation may, for the purposes of this Division, provide to the Youth Parole Board terrorism risk information in respect of a person about whom a determination or order may be made under this Division.Notes

1 Other sections of this Division impose certain requirements as a consequence of the Secretary to the Department of Justice and Regulation providing information under this section. See sections 458(1AA) and 460C.

2 Section 492D also empowers the Secretary to the Department of Justice and Regulation, and persons employed in that Department, to disclose terrorism risk information to the Youth Parole Board. However, sections 458(1AA) and 460C only apply as a consequence of a disclosure under this section.".

106 Release on parole from youth residential centre or youth justice centre

(1) In section 458(1) of the Children, Youth and Families Act 2005, for "The Youth Parole Board" substitute "Subject to this section, the Youth Parole Board".



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(2) After section 458(1) of the Children, Youth and Families Act 2005 insert—

"(1AA) If the Secretary to the Department of Justice and Regulation provides the Youth Parole Board with terrorism risk information under section 457B in respect of a person, the Board must not determine whether to release the person on parole until the Board has first determined whether or not the Board is satisfied that there is a risk that the person will commit a terrorism or foreign incursion offence.

(1AAB) Subsection (1AA) does not apply in relation to a determination of whether to release on parole a person who—

(a) has a terrorism record; or

(b) is charged with a terrorism or foreign incursion offence.

(1AAC) The presumption against parole set out in subsection (1AAD) applies to a person if—


(b) the person is charged with a terrorism or foreign incursion offence; or

(c) the Youth Parole Board has determined, under subsection (1AA), that there is a risk that the person will commit a terrorism or foreign incursion offence.

(1AAD) The Youth Parole Board must not release on parole a person referred to in subsection (1AAC) unless satisfied that—

(a) in the case of a person who has been convicted of a terrorism or foreign incursion offence, there are exceptional circumstances that justify making the order; or



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(b) in any other case, there are compelling reasons that justify making the order.".

107 Cancellation of parole

In section 460(1) of the Children, Youth and Families Act 2005, for "If a person" substitute "Subject to this section and sections 460A, 460B and 460C, if a person".

108 New sections 460A, 460B and 460C inserted


"460A Requirement to consider cancelling parole of person charged with certain offences in certain circumstances

(1) Subject to subsection (2), the Youth Parole Board must consider whether to cancel a person's parole under section 460(1) if—

(a) the person is charged, while on parole, with a terrorism or foreign incursion offence that is alleged to have been committed while the person was on parole; and

(b) either the person—

(i) has a terrorism record; or

(ii) was released on parole following the Board determining, under section 458(1AA), that there was a risk that the person would commit a terrorism or foreign incursion offence.



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(2) The Youth Parole Board must determine to cancel the person's parole unless satisfied that—

(a) if the person has been convicted of a terrorism or foreign incursion offence, there are exceptional circumstances that justify the continuation of the parole; or

(b) otherwise, there are compelling reasons that justify the continuation of the parole.

460B Requirement to consider cancelling parole of person who gains a terrorism record

(1) Subject to subsection (2), the Youth Parole Board must consider whether to cancel a person's parole under section 460(1) if the person comes to have a terrorism record while on parole.Example

A person becomes subject to a terrorism-related order while on parole.

(2) The Youth Parole Board must determine to cancel the person's parole unless satisfied that—


(b) otherwise, there are compelling reasons that justify the continuation of the parole.



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460C Requirement to consider cancelling parole if new terrorism risk information provided

(1) Subject to subsections (2) and (3), the Youth Parole Board must consider whether to cancel a person's parole under section 460(1) if, while the person is on parole, the Secretary to the Department of Justice and Regulation provides the Board with terrorism risk information under section 457B in respect of the person that is new to the Board.

(2) The Youth Parole Board must determine to cancel the person's parole if satisfied that—

(a) in the case of a person released on parole following the Board determining, under section 458(1AA), that there was a risk that the person would commit a terrorism or foreign incursion offence, there has been an increase in the risk in relation to which that determination was made; or

(b) in the case of a person who had a terrorism record when released on parole, the risk that the person will commit a terrorism or foreign incursion offence has increased since the person was released on parole; or

(c) in any other case, there is a risk that the person will commit a terrorism or foreign incursion offence.

(3) Despite subsection (2), the Youth Parole Board is not required to determine under that subsection to cancel the person's parole if satisfied that—



218


(b) otherwise, there are compelling reasons that justify the continuation of the parole.".

109 Department of Justice and Regulation may disclose terrorism risk information

At the foot of section 492D of the Children, Youth and Families Act 2005 insert—"Note

Section 457B also empowers the Secretary to the Department of Justice and Regulation to provide terrorism risk information to the Youth Parole Board, but only for the purposes of Division 5 of Part 5.5.".

Division 3—Transitional provisions110 New section 630 inserted


"630 Transitional provisions—Justice Legislation Amendment (Terrorism) Act 2018

(1) On and after the commencement of Division 2 of Part 4 of the Justice Legislation Amendment (Terrorism) Act 2018, Part 5.5 as amended by that Division applies to the making of a determination or order under Part 5.5 regardless of whether—

(a) the Youth Parole Board had begun to consider whether to make that determination or order before that commencement; or



219

(b) the Youth Parole Board had jurisdiction to make that determination or order before that commencement.

(2) On and after the commencement of section 108 of the Justice Legislation Amendment (Terrorism) Act 2018, sections 460, 460A, 460B and 460C apply to the parole of a person regardless of whether the parole was granted before that commencement.".

Division 4—Miscellaneous111 Statute law revision

In section 3(1) of the Children, Youth and Families Act 2005, in the definition of Category B serious youth offence, in paragraph (e), for "(carjacking)." substitute "(carjacking);".

112 Definitions

In section 3(1) of the Children, Youth and Families Act 2005, in the definition of Category A serious youth offence, for paragraph (f) substitute—

"(f) an offence against any one of the following—

(i) section 4B of the Terrorism (Community Protection) Act 2003;

(ii) a provision of Subdivision A of Division 72 of Chapter 4 of the Criminal Code of the Commonwealth;

(iii) a provision of Part 5.3 or 5.5 of the Criminal Code of the Commonwealth;

(iv) a provision of the Crimes (Foreign Incursions and Recruitment) Act 1978 of the Commonwealth as in force before its repeal;".



220

113 Children, Youth and Families Act 2005—consequential amendment related to police detention decisions

For section 483(1A) of the Children, Youth and Families Act 2005 substitute—

"(1A) A person who is detained in a remand centre, youth residential centre or youth justice centre under Part 2AA of the Terrorism (Community Protection) Act 2003 under section 13AR of that Act pursuant to a police detention decision (within the meaning of that Act), or under an order referred to in section 13WA(5) of that Act, ceases to be in the legal custody of the Secretary—

(a) during any time when the person is in the legal custody of the Chief Commissioner of Police under section 6D of the Corrections Act 1986; or

(b) when the Secretary acting under lawful direction or authority, or in accordance with an Act, releases the person from the legal custody of the Secretary.".



221

Part 5—Amendment of Corrections Act 1986

Division 1—Information sharing114 Definitions—Part 9E

(1) In section 104ZX of the Corrections Act 1986, in the definition of Corrections-related legislation—

(a) after paragraph (c) insert—

"(ca) the Crimes Act 1958;";

(b) after paragraph (j) insert—

"(ja) the Terrorism (Community Protection) Act 2003;";

(c) after paragraph (k) insert—

"(ka) the Crimes Act 1914 of the Commonwealth;

(kb) the Criminal Code Act 1995 of the Commonwealth;".

(2) In section 104ZX of the Corrections Act 1986, for the definition of relevant person substitute—

"relevant person means a person specified in an item of Schedule 5;".

115 Authorisation to use or disclose information

(1) In section 104ZY(2)(a)(i) of the Corrections Act 1986, for "violent offence or a sexual offence or both;" substitute "violent offence, a sexual offence or a terrorism or foreign incursion offence;".

(2) In section 104ZY(2)(di) of the Corrections Act 1986, for "use of disclosure" substitute "use or disclosure".

(3) In section 104ZY(2)(k) of the Corrections Act 1986, for "the Commonwealth Department of



222

Immigration and Border Protection" substitute "the Department of Home Affairs of the Commonwealth".

116 Authorisation to disclose information given to Adult Parole Board

In section 104ZZ(1)(a) of the Corrections Act 1986, for "legislation;" substitute "legislation or Corrections-related legislation;".

117 Schedule 5 inserted

After Schedule 4 to the Corrections Act 1986 insert—

"Schedule 5—Persons authorised to use and disclose information

Part 1—Persons related to Victorian entities

1. Adult Parole Board

(1) A member of the Board.

(2) The secretary of the Board.

2. The Department

(1) The Secretary.

(2) A person employed in the Department under Part 3 of the Public Administration Act 2004.

(3) A person who provides services or advice (whether paid or unpaid) to or on behalf of the Department.

3. Department of Education and Training

(1) The Secretary to the Department of Education and Training.



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(2) A person employed in the Department of Education and Training under Part 3 of the Public Administration Act 2004.

(3) A person who provides services or advice (whether paid or unpaid) to or on behalf of the Department of Education and Training.

(4) A person authorised to act on behalf of another person referred to in this item.

4. Department of Health and Human Services

(1) The Secretary to the Department of Health and Human Services.

(2) A person employed in the Department of Health and Human Services under Part 3 of the Public Administration Act 2004.

(3) A person who provides services or advice (whether paid or unpaid) to or on behalf of the Department of Health and Human Services.

5. Office of Public Prosecutions

(1) The Director of Public Prosecutions appointed under section 87AB of the Constitution Act 1975.

(2) The Chief Crown Prosecutor within the meaning of the Public Prosecutions Act 1994.

(3) A Crown Prosecutor or Associate Crown Prosecutor within the meaning of the Public Prosecutions Act 1994.

(4) The Solicitor for Public Prosecutions appointed under the Public Prosecutions Act 1994.

(5) A person employed in the Office of Public Prosecutions under Part 3 of the Public



224

Administration Act 2004.

(6) A person who provides services or advice (whether paid or unpaid) to or on behalf of the Office of Public Prosecutions.


(8) In this item—

Office of Public Prosecutions means the Office continued by section 39 of the Public Prosecutions Act 1994.

6. Post Sentence Authority

(1) A member of the Post Sentence Authority.

(2) A person who—

(a) is an employee of a public entity within the meaning of the Public Administration Act 2004 or a public service body within the meaning of that Act; and

(b) is assisting the Post Sentence Authority under section 192N of the Serious Sex Offenders (Detention and Supervision) Act 2009 to perform the Authority's functions.

(3) A person who provides services or advice (whether paid or unpaid) to or on behalf of the Post Sentence Authority.


7. Victoria Police

(1) The Chief Commissioner of Police.

(2) A police officer.



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(3) A Victoria Police employee within the meaning of the Victoria Police Act 2013.

(4) A person who provides services or advice (whether paid or unpaid) to or on behalf of Victoria Police.

8. Other

(1) An independent prison visitor.

(2) A contractor or sub-contractor.

(3) An employee of a contractor or sub-contractor.

(4) An officer within the meaning of Part 5 or Part 9.

(5) A person prescribed as a responsible agency under paragraph (d) of the definition of responsible agency in section 3 of the Serious Sex Offenders (Detention and Supervision) Act 2009.

(6) Each of the following individuals in respect of an unincorporated body or association prescribed as a responsible agency under paragraph (d) of the definition of responsible agency in section 3 of the Serious Sex Offenders (Detention and Supervision) Act 2009—

(a) an individual holding the position of president, vice president, secretary or treasurer of the body or association;

(b) an individual holding a position referred to in paragraph (a) (however described by the body or association or the rules or constituting documents of the body or association);

(c) an individual in control of all or a substantial part of the activities of the



226

body or association;

(d) an individual appointed by the body or organisation to be in charge of an activity of the body or organisation.

(7) A person authorised to act on behalf of a person referred to in sub-item (5) or (6).

Part 2—Persons related to entities outside Victoria

9. Australian Crime Commission

(1) The CEO of the Australian Crime Commission.

(2) A member of the staff of the Australian Crime Commission referred to in section 47 of the Australian Crime Commission Act 2002 of the Commonwealth.

(3) A person who provides services or advice (whether paid or unpaid) to or on behalf of the Australian Crime Commission.


(5) In this item—

Australian Crime Commission means the Australian Crime Commission (by whatever name described) established by the Australian Crime Commission Act 2002 of the Commonwealth;

CEO has the same meaning as in the Australian Crime Commission Act 2002 of the Commonwealth.

10. Australian Federal Police



227

(1) The Commissioner of the Australian Federal Police.

(2) A member or a special member of the Australian Federal Police.

(3) A person who provides services or advice (whether paid or unpaid) to or on behalf of the Australian Federal Police.

11. Australian Security and Intelligence Organisation

(1) The Director-General of Australian Security and Intelligence Organisation.

(2) An ASIO employee within the meaning of the Australian Security Intelligence Organisation Act 1979 of the Commonwealth.

(3) A person who provides services or advice (whether paid or unpaid) to or on behalf of the Australian Security and Intelligence Organisation.


12. Attorney-General's Department of the Commonwealth

(1) The Secretary to the Attorney-General's Department of the Commonwealth.

(2) An APS employee (within the meaning of the Public Service Act 1999 of the Commonwealth) in the Attorney-General's Department of the Commonwealth.

(3) A person who provides services or advice (whether paid or unpaid) to or on behalf of the Attorney-General's Department of the Commonwealth.



228

13. Department of Foreign Affairs and Trade of the Commonwealth

(1) The Secretary to the Department of Foreign Affairs and Trade of the Commonwealth.

(2) An APS employee (within the meaning of the Public Service Act 1999 of the Commonwealth) in the Department of Foreign Affairs and Trade of the Commonwealth.

(3) A person who provides services or advice (whether paid or unpaid) to or on behalf of the Department of Foreign Affairs and Trade of the Commonwealth.

14. Department of Human Services of the Commonwealth

(1) The Secretary to the Department of Human Services of the Commonwealth.

(2) An APS employee (within the meaning of the Public Service Act 1999 of the Commonwealth) in the Department of Human Services of the Commonwealth.

(3) A person who provides services or advice (whether paid or unpaid) to or on behalf of the Department of Human Services of the Commonwealth.

15. Department of Home Affairs of the Commonwealth

(1) The Secretary to the Department of Home Affairs of the Commonwealth.

(2) An APS employee (within the meaning of the Public Service Act 1999 of the Commonwealth) in the Department of Home Affairs of the Commonwealth.



229

(3) A person who provides services or advice (whether paid or unpaid) to or on behalf of the Department of Home Affairs of the Commonwealth.

16. New South Wales Crime Commission

(1) An officer of the New South Wales Crime Commission.

(2) A person who provides services or advice (whether paid or unpaid) to or on behalf of the New South Wales Crime Commission.


(4) In this item—

New South Wales Crime Commission means the Commission within the meaning of the Crime Commission Act 2012 of New South Wales;

officer of the New South Wales Crime Commission means an officer of the Commission within the meaning of the Crime Commission Act 2012 of New South Wales.

17. Office of the Commonwealth Director of Public Prosecutions

(1) The Commonwealth Director of Public Prosecutions.

(2) A member of the staff of the Office of the Commonwealth Director of Public Prosecutions within the meaning of the Director of Public Prosecutions Act 1983 of the Commonwealth.



230

(3) A person who provides services or advice (whether paid or unpaid) to or on behalf of the Office of the Commonwealth Director of Public Prosecutions.


18. Police force of other State or Territory

(1) A member of the police force or police service of another State or a Territory.

(2) A person who provides services or advice (whether paid or unpaid) to or on behalf of the police force or police service of another State or a Territory.".

Division 2—Parole118 Definitions

(1) In section 3(1) of the Corrections Act 1986 insert the following definitions—

"SVOSO division means the Serious Violent Offender or Sexual Offender Parole division of the Board established by section 74AAB(1);

terrorism record has the meaning given in section 3A;






231





terrorism risk information has the meaning given in section 3B;

terrorist act has the same meaning as in the Terrorism (Community Protection) Act 2003;

terrorist organisation has the same meaning as in Division 102 of the Criminal Code of the Commonwealth;".

(2) In section 3(1) of the Corrections Act 1986, for the definition of terrorism or foreign incursion offence substitute—






232



(e) a provision of the Crimes (Foreign Incursions and Recruitment) Act 1978 of the Commonwealth as in force before its repeal;".


After section 3 of the Corrections Act 1986 insert—

"3A Meaning of terrorism record




3B Meaning of terrorism risk information






233






(e) the Department; and













234



Other provisions of this Act prevent decision-makers from having regard to information referred to in paragraph (b) unless the decision-maker is satisfied that the person knew certain matters about the person or group that the association is with. See sections 74(1AAC), 74AAC(4) and 77(3G).".

120 Secretary to supply assistance to Board

After section 70(3) of the Corrections Act 1986 insert—

"(4) The Secretary may provide to the Board terrorism risk information in respect of a prisoner for the purposes of this Division.".

121 Release on parole after service of non-parole period

(1) In section 74(1) of the Corrections Act 1986, for "section 74AAB" substitute "sections 74AAB, 74AAC".

(2) After section 74(1AA) of the Corrections Act 1986 insert—

"(1AAB) For the purposes of subsection (1) but subject to subsection (1AAC), the Board must have regard to the terrorism risk information in respect of the prisoner that is provided to the Board by the Secretary under section 70(4) (if any).Note

Under section 74AAC, certain restrictions apply if a division of the Board other than the SVOSO division is considering whether to make the order and terrorism risk information is provided.



235

(1AAC) The Board must not have regard to terrorism risk information regarding the prisoner having, or having had, an association with a person or group referred to in section 3B(3)(b)(i), (ii) or (iii) unless the Board is satisfied that the prisoner knew—







122 Parole decisions made by Serious Violent Offender or Sexual Offender Parole Division

(1) For the heading to section 74AAB of the Corrections Act 1986 substitute—

"Parole decisions made by Serious Violent Offender or Sexual Offender Parole Division".

(2) In section 74AAB(1) of the Corrections Act 1986 omit "(SVOSO division)".

(3) For section 74AAB(2) of the Corrections Act 1986 substitute—

"(2) The primary function of the SVOSO division is to decide whether or not to make an order under section 74—

(a) that a prisoner who does not have a terrorism record be released on parole



236

in respect of—

(i) a sexual offence; or

(ii) a serious violent offence; or

(b) that a prisoner who has a terrorism record be released on parole in respect of any offence; or

(c) that a prisoner who is charged with a terrorism or foreign incursion offence be released on parole in respect of any offence; or

(d) following a referral made under section 74AAC(5)(b).Note

Section 74AAC requires other divisions of the Board to refer parole decisions to the SVOSO division if satisfied that there is a risk that the prisoner will commit a terrorism or foreign incursion offence.

(2A) The only other function of the SVOSO division is to decide whether to make an order under section 77A(2) revoking the cancellation of a prisoner's parole under section 77(6).".

(4) In section 74AAB(3) of the Corrections Act 1986, for "under section 74 that a prisoner be released on parole in respect of a sexual offence, a serious violent offence or a terrorism or foreign incursion offence" substitute "referred to in subsection (2)".

(5) In section 74AAB(5) of the Corrections Act 1986, for "that a prisoner be released on parole in respect of a sexual offence, a serious violent offence or a terrorism or foreign incursion offence" substitute "referred to in subsection (2)(a)".



237

(6) After section 74AAB(5) of the Corrections Act 1986 insert—

"(5A) The SVOSO division may only make an order referred to in subsection (2)(b), (c) or (d) if—

(a) another division of the Board has recommended that parole be granted; and

(b) the SVOSO division has considered the recommendation; and

(c) the SVOSO division is satisfied that—

(i) in the case of a prisoner who has been convicted of a terrorism or foreign incursion offence, there are exceptional circumstances that justify making the order; or

(ii) in any other case, there are compelling reasons that justify making the order.".

(7) In section 74AAB(6) of the Corrections Act 1986, for "subsection (5)," substitute "subsections (5) and (5A),".

(8) In section 74AAB(7) of the Corrections Act 1986, for "that a prisoner be released on parole in respect of a sexual offence, a serious violent offence or a terrorism or foreign incursion offence" substitute "referred to in subsection (2)".

123 New section 74AAC inserted



238

After section 74AAB of the Corrections Act 1986 insert—

"74AAC Parole decisions where terrorism risk information provided to Board


(a) a division of the Board (other than the SVOSO division) is considering whether or not to make an order under section 74 that a prisoner be released on parole in respect of any offence; and

(b) the prisoner does not have a terrorism record; and

(c) the Secretary provides the Board with terrorism risk information in respect of the prisoner under section 70(4).

(2) Before making the order referred to in subsection (1)(a), the division must determine whether or not it is satisfied that there is a risk that the prisoner will commit a terrorism or foreign incursion offence.

(3) For the purposes of subsection (2), the division must have regard to—

(a) subject to subsection (4), the terrorism risk information referred to in subsection (1)(c); and

(b) the record of the court in relation to the prisoner's offending, including the judgment and the reasons for sentence.

(4) The division must not have regard to terrorism risk information regarding the prisoner having, or having had, an association with a person or group referred to in section 3B(3)(b)(i), (ii) or (iii) unless the division is satisfied that the prisoner knew—



239







(5) If the division is satisfied that there is a risk that the prisoner will commit a terrorism or foreign incursion offence—

(a) the division must not make an order under section 74 that the prisoner be released on parole; and

(b) instead, the division must either—

(i) refuse to make an order under section 74 that the prisoner be released on parole; or

(ii) subject to subsection (6), refer the decision of whether to make the order to the SVOSO division along with a recommendation that parole should be granted.

(6) The division must not refer the decision to the SVOSO division under subsection (5)(b)(ii) unless the division is satisfied that—



240

(a) in the case of a prisoner who has been convicted of a terrorism or foreign incursion offence, there are exceptional circumstances that justify releasing the prisoner on parole; or

(b) in any other case, there are compelling reasons that justify releasing the prisoner on parole.

(7) This section applies whether the prisoner was sentenced to imprisonment in respect of the offence before or after this section comes into operation.".

124 Cancellation of parole

(1) In section 77(2) of the Corrections Act 1986, for "subsection (3)," substitute "subsections (3) and (3A),".

(2) For section 77(3)(a) of the Corrections Act 1986 substitute—

"(a) the prisoner referred to in subsection (2)—

(i) was released on parole in respect of a sexual offence or a serious violent offence; and

(ii) was not released on parole under an order under section 74 made following a referral under section 74AAC(5)(b); and

(iii) does not have a terrorism record; and".

(3) After section 77(3) of the Corrections Act 1986 insert—

"(3A) If—



241

(a) the prisoner referred to in subsection (2)—

(i) was released on parole under an order under section 74 made following a referral under section 74AAC(5)(b); or

(ii) has a terrorism record; and

(b) the offence with which the prisoner was charged, while on parole, was a sexual offence, a violent offence or a terrorism or foreign incursion offence—

the Board must determine under subsection (2) to cancel the parole of the prisoner unless the Board is satisfied, having regard to the terrorism risk information provided to the Board by the Secretary under section 70(4) in respect of the prisoner (if any), that the applicable threshold under subsection (3H) is met.

(3B) Subject to subsection (3C), the Board must consider whether to cancel the parole or to vary the terms and conditions of the parole of a prisoner if the prisoner comes to have a terrorism record while on parole.Example

A prisoner becomes subject to a terrorism-related order while on parole.

(3C) The Board must determine under subsection (3B) to cancel the parole of the prisoner unless the Board is satisfied, having regard to the terrorism risk information provided to the Board by the Secretary under section 70(4) in respect of the prisoner (if any), that the applicable threshold under subsection (3H) is met.



242

(3D) Subject to subsections (3E) and (3F), if under section 70(4) the Secretary provides the Board with new terrorism risk information in respect of a prisoner who is on parole, the Board must consider whether to cancel the parole or to vary the terms and conditions of the parole.

(3E) The Board must determine under subsection (3D) to cancel the parole of the prisoner if the Board is satisfied, having regard to the new terrorism risk information, that—

(a) in the case of a prisoner who was released on parole under an order under section 74 made following a referral under section 74AAC(5)(b), there has been an increase in the risk in relation to which that referral was made; orNote

Section 74AAC(5) requires that a decision of whether to grant parole be referred to the SVOSO division if there is a risk that the prisoner will commit a terrorism or foreign incursion offence.

(b) in the case of a prisoner who had a terrorism record when released on parole, the risk that the prisoner will commit a terrorism or foreign incursion offence has increased since the prisoner was released on parole; or

(c) in any other case, there is a risk that the prisoner will commit a terrorism or foreign incursion offence if released on parole.

(3F) Despite subsection (3E), the Board is not required to determine under that subsection to cancel the parole of the prisoner if the



243

Board is satisfied, having regard to the terrorism risk information provided to the Board by the Secretary under section 70(4) in respect of the prisoner, that the applicable threshold under subsection (3H) is met.

(3G) For the purposes of subsection (3C), (3D), (3E) or (3F), the Board must not have regard to terrorism risk information regarding the prisoner having, or having had, an association with a person or group referred to in section 3B(3)(b)(i), (ii) or (iii) unless the Board is satisfied that the prisoner knew—







(3H) For the purposes of this section, the applicable threshold for a prisoner on parole is—

(a) if the prisoner has been convicted of a terrorism or foreign incursion offence, that there are exceptional circumstances that justify the continuation of the parole; or

(b) otherwise, that there are compelling reasons that justify the continuation of



244

the parole.".

(4) For section 77(6) of the Corrections Act 1986 substitute—

"(6) The parole of a prisoner is taken to have been cancelled on the conviction of the prisoner for a sexual offence, a violent offence or a terrorism or foreign incursion offence that was committed during the parole period if—

(a) the prisoner—

(i) did not have a terrorism record immediately before that conviction; and

(ii) was released on parole in respect of a sexual offence or a serious violent offence; or

(b) the prisoner had a terrorism record immediately before that conviction; or

(c) the prisoner was released on parole under an order under section 74 made following a referral under section 74AAC(5)(b).".

125 Revocation of cancellation

(1) In section 77A(2) of the Corrections Act 1986, for "The" substitute "Subject to subsection (2A), the".

(2) After section 77A(2) of the Corrections Act 1986 insert—

"(2A) The cancellation of a prisoner's parole in accordance with section 77(6) may be revoked only by an order made by the SVOSO division.".

126 Schedule 4 repealed



245

Schedule 4 to the Corrections Act 1986 is repealed.

Division 3—Police detention decision amendments127 When does legal custody of the Secretary cease?

(1) In section 6B(1)(b) of the Corrections Act 1986, after "authority" insert ", or in accordance with an Act,".

(2) At the end of section 6B of the Corrections Act 1986 insert—

"(3) A person in relation to whom a preventative detention order (within the meaning of the Terrorism (Community Protection) Act 2003) is in effect and who is detained in a prison (a detained person) also ceases to be in the legal custody of the Secretary when a person acting under lawful authority on behalf of the Secretary gives the physical custody of the detained person to a police officer under section 13WB of that Act.".

128 When is a person in the legal custody of the Chief Commissioner of Police?

After section 6D(2) of the Corrections Act 1986 insert—

"(2AA) A person is also deemed to enter the legal custody of the Chief Commissioner for the purposes of this Act when a police officer takes physical custody of the person under section 13AH, 13AT or 13WB of the Terrorism (Community Protection) Act 2003.".

129 When does legal custody of the Chief Commissioner of Police cease?



246

(1) In section 6E(1)(b) of the Corrections Act 1986, after "authority" insert ", or in accordance with an Act,".

(2) After section 6E(1)(ca) of the Corrections Act 1986 insert—

"(cab) when a police officer detaining a person under Part 2AA of the Terrorism (Community Protection) Act 2003 gives custody of the person to a person at a youth justice facility who acting under lawful authority on behalf of the Secretary may receive the person into the facility; or

(cac) when a police officer detaining a person under a preventative detention order within the meaning of Terrorism (Community Protection) Act 2003 gives custody of the person to, as the case requires—

(i) a person at a prison who acting under lawful authority on behalf of the Secretary may receive the person into the prison; or

(ii) a person at a youth justice facility who acting under lawful authority on behalf of the Secretary may receive the person into the facility; or".

Division 4—Transitional provisions130 New section 129 inserted



247

After section 128 of the Corrections Act 1986 insert—

"129 Transitional—Justice Legislation Amendment (Terrorism) Act 2018

(1) Without limiting the application of the amendments made by Division 2 of Part 5 of the Justice Legislation Amendment (Terrorism) Act 2018 in respect of applications for parole that are made on or after the commencement of those amendments, those amendments also apply—

(a) to an application for parole that is made, but has not been determined, before the commencement of those amendments; and

(b) to a prisoner regardless of whether before the commencement of those amendments—

(i) the prisoner had become eligible for parole; or

(ii) the prisoner had taken any steps to ask the Board to grant the prisoner parole; or

(iii) the Board had begun any consideration of whether the prisoner should be granted parole.

(2) Section 77 as amended by section 124 of the Justice Legislation Amendment (Terrorism) Act 2018 applies in respectof a parole order in force on or after the commencement of section 124 of that Act even if the parole order is made before that commencement.



248

(3) Section 77A as amended by section 125 of the Justice Legislation Amendment (Terrorism) Act 2018 applies in respectof a parole order in force on or after the commencement of section 125 of that Act even if the parole order is made before that commencement.".



249

Part 6—Amendment of Crimes Act 1958131 Use of force to prevent the commission of an

indictable offence

At the foot of section 462A of the Crimes Act 1958 insert—"Example

A police officer or protective services officer uses lethal force on a person to prevent that person from committing an indictable offence that involves causing really serious injury or death because the officer believes on reasonable grounds that it is necessary to use that force for that purpose. The police officer or protective services officer may do so before that offence is committed.".



250

Part 7—Amendment of other Acts

Division 1—Serious youth offences132 Criminal Procedure Act 2009—Definitions

In section 3 of the Criminal Procedure Act 2009, in the definition of Category A serious youth offence, for paragraph (f) substitute—






133 Sentencing Act 1991—Definitions

In section 3(1) of the Sentencing Act 1991, in the definition of Category A serious youth offence, for paragraph (f) substitute—






251



Division 2—Annual reporting by Commission for Children and Young People

134 Commission for Children and Young People Act 2012—New section 23A inserted

After section 23 of the Commission for Children and Young People Act 2012 insert—

"23A Matter relating to monitoring role under Terrorism (Community Protection) Act 2003 to be included in annual report

The Commission must include the following matter in its annual report of operations under Part 7 of the Financial Management Act 1994—

(a) the number of times the Commission has performed its function under section 4O(a) of the Terrorism (Community Protection) Act 2003 in the financial year to which the report relates;

(b) any general observations or conclusions that the Commission may want to include in the report in relation to the performance of its function under section 4O(a) of the Terrorism (Community Protection) Act 2003 in the financial year to which the report relates.".



252



253

Part 8—Repeal of amending Act135 Repeal of amending Act

This Act is repealed on 1 May 2020.Note

The repeal of this Act does not affect the continuingoperation of the amendments made by it (see section 15(1)of the Interpretation of Legislation Act 1984).

═════════════



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Endnotes1 General information

See www.legislation.vic.gov.au for Victorian Bills, Acts and current authorised versions of legislation and up-to-date legislative information.

Endnotes


255

http://www.legislation.vic.gov.au/

† Minister's second reading speech—

Legislative Assembly: 10 May 2018

Legislative Council: 8 June 2018

The long title for the Bill for this Act was "A Bill for an Act to amend the Terrorism (Community Protection) Act 2003, the Bail Act 1977, the Children, Youth and Families Act 2005, the Corrections Act 1986, the Crimes Act 1958, the Criminal Procedure Act 2009, the Sentencing Act 1991 and the Commission for Children and Young People Act 2012 and for other purposes."

€¦ · web viewpage. justice legislation amendment (terrorism) act 2018. no. 32 of 2018....

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