2017
2017
2017-12-06
act
government
publicgeneral
act.reprint
partuncommenced
2017-11-15
2017-11-15
0
2017
none
act-2017-068
9ae203cf-e271-4ee1-9121-53cbafaadae3
463ebc5c-da99-41af-ae78-4763b0da1110
Note—
Amending provisions are subject to automatic
repeal pursuant to sec 30C of the Interpretation
Act 1987 No 15 once the amendments have taken
effect.
An Act to provide for the supervision and
detention of certain offenders posing an unacceptable risk of committing
serious terrorism offences; and to make consequential and related amendments
to certain legislation.
Part 1Preliminary
Division 1.1Introduction
1Name of
Act
This Act is the Terrorism (High
Risk Offenders) Act 2017.
2Commencement
(1)
This Act commences on the relevant commencement
day, except as provided by subsection (3).
(2)
The relevant
commencement day is:
(a)
if the date of assent to this Act is before the
day on which Schedule 1 to the Crimes (High Risk
Offenders) Amendment Act 2017 commences—the day on
which that Schedule commences, or
(b)
if the date of assent to this Act is on or after
the day on which Schedule 1 to the Crimes (High Risk
Offenders) Amendment Act 2017 commences—the date of
assent.
(3)
Schedule 2 (other than Schedule 2.10 [2], 2.12
and 2.14) commences on a day or days to be appointed by
proclamation.
3Objects of
Act
(1)
The primary object of this Act is to provide for
the extended supervision and continuing detention of certain offenders posing
an unacceptable risk of committing serious terrorism offences so as to ensure
the safety and protection of the community.
(2)
Another object of this Act is to encourage these
offenders to undertake rehabilitation.
Division 1.2Interpretation
generally
4Definitions
(1)
In this Act:
Australian jurisdiction
means:
(a)
a State, or
(b)
a Territory, or
(c)
the Commonwealth.
business
day means any day that is not a Saturday, Sunday or public
holiday.
Commissioner of Corrective Services
has the same meaning as Commissioner has in the Crimes (Administration of Sentences) Act
1999.
Commonwealth Criminal Code means the
Criminal Code set out in the Schedule to
the Criminal Code Act 1995 of the
Commonwealth.
continuing detention order means an
order for the detention of an eligible offender made under Division
3.2.
control
order means a control order within the meaning of Part 5.3
of the Commonwealth Criminal Code.
convicted
NSW terrorism activity offender—see section
10.
convicted
NSW terrorist offender—see section 8.
convicted
NSW underlying terrorism offender—see section
9.
correctional centre has the same
meaning as in the Crimes (Administration of Sentences)
Act 1999.
Corrective Services NSW has the same
meaning as in the Crimes (Administration of Sentences)
Act 1999.
corrective services officer means a
correctional officer or community corrections officer within the meaning of
the Crimes (Administration of Sentences) Act
1999.
eligible
offender—see section 7.
eligible
offender in lawful custody—see section
5.
emergency
detention order means an emergency order for the detention
of an eligible offender made under Division 3.6.
enforcement officer means:
(a)
a corrective services officer,
or
(b)
a police officer.
extended
supervision order means an order for the supervision of an
eligible offender made under Division 2.2.
function includes a power, authority
or duty, and exercise a function includes perform
a duty.
HRO
Assessment Committee means the High Risk Offenders
Assessment Committee established by section 24AB of the Crimes
(High Risk Offenders) Act 2006.
interim
detention order means an interim order for the detention of
an eligible offender made under Division 3.5.
interim
supervision order means an interim order for the supervision
of an eligible offender made under Division 2.5.
Justice
Health and Forensic Mental Health Network means the
statutory health corporation of that name specified in Schedule 2 to the
Health Services Act 1997.
NSW
indictable offence means an offence against a law of the
State for which proceedings may be taken on indictment (whether or not
proceedings for the offence may also be taken otherwise than on
indictment).
order
under Part 2 or 3 means any of the following orders:
(a)
an extended supervision
order,
(b)
an interim supervision order,
(c)
a continuing detention order,
(d)
an interim detention order,
(e)
an emergency detention
order.
prescribed terrorism intelligence
authority means any authority or other agency (or authority
or other agency of a kind) of an Australian jurisdiction that is prescribed by
the regulations.
qualified
psychiatrist means a registered medical practitioner who is
a fellow of the Royal Australian and New Zealand College of
Psychiatrists.
relevant
expert means a person who has expertise in relation to a
body of knowledge of a kind prescribed by the regulations.
sentencing court, in relation to an
eligible offender or other person who has served or is serving a sentence of
imprisonment for an offence, means:
(a)
the court by which the sentence was imposed,
and
(b)
any court that heard an appeal in respect of that
sentence.
serious
terrorism offence means an offence against Part 5.3 of the
Commonwealth Criminal Code for which the maximum penalty is 7 or more years of
imprisonment.
serving a
sentence of imprisonment—see section 6.
supporting documentation, in
relation to proceedings under Part 2 or 3, means the documentation referred to
in section 23 (3) or 37 (4), as the case requires.
terrorism
activity means:
(a)
any statement or other conduct of any person or
group of persons involving advocating support for engaging in any terrorist
acts or violent extremism, or
(b)
any conduct or other activity of any person or
group of persons involving planning or preparing for, or engaging in, any
terrorist acts or violent extremism.
terrorism
intelligence means information relating to actual or
suspected terrorism activity (whether in the State or elsewhere) the
disclosure of which could reasonably be expected:
(a)
to adversely affect the capacity of persons or
bodies involved in the prevention of terrorist acts from preventing such acts,
or
(b)
to prejudice criminal investigations,
or
(c)
to enable the discovery of the existence or
identity of a confidential source of information relevant to law enforcement,
or
(d)
to endanger a person’s life or physical
safety.
terrorist
act has the same meaning as in Part 5.3 of the Commonwealth
Criminal Code.
Note—
The Interpretation
Act 1987 contains definitions and other provisions that
affect the interpretation and application of this Act.
(2)
Notes included in this Act do not form part of
this Act.
5Offender in lawful
custody
In this Act, an eligible
offender in lawful custody includes, where used in relation
to an eligible offender who is subject to an extended supervision order or
interim supervision order, the offender being in lawful custody during a
period for which the offender is on remand for any
offence.
6Serving sentence of
imprisonment
In this Act, a person is serving a
sentence of imprisonment for an offence if:
(a)
the person is serving a sentence of imprisonment
for the offence by way of full-time detention, or
(b)
the person is on parole in respect of the
offence.
Division 1.3Key
concepts
7Eligible
offender
In this Act, an eligible offender is a person who
is:
(a)
18 years of age or older, and
(b)
serving (or is continuing to be supervised or
detained under this Act after serving) a sentence of imprisonment for a NSW
indictable offence.
8Convicted NSW terrorist
offender
In this Act, an eligible offender is a convicted
NSW terrorist offender if:
(a)
the offender is serving (or is continuing to be
supervised or detained under this Act after serving) a sentence of
imprisonment for an offence against section 310J of the Crimes
Act 1900, or
(b)
the offender has previously served a sentence of
imprisonment for an offence against section 310J of the Crimes
Act 1900 and is serving (or is continuing to be supervised
or detained under this Act after serving) a sentence of imprisonment for any
other NSW indictable offence.
9Convicted NSW underlying
terrorism offender
(1)
In this Act, an eligible offender is a convicted
NSW underlying terrorism offender if:
(a)
the offender is serving (or is continuing to be
supervised or detained under this Act after serving) a sentence of
imprisonment for a NSW indictable offence (the offender’s offence),
and
(b)
the offender’s offence is a serious
offence, and
(c)
the offender’s offence occurred in a
terrorism context.
(2)
Each of the following kinds of offences (however
described) is a serious
offence:
(a)
an offence against the Firearms Act 1996,
(b)
an offence against the Weapons Prohibition Act
1998,
(c)
an offence that caused the death of, or grievous
bodily harm or other serious physical harm to, a person,
(d)
an offence that caused serious damage to
property,
(e)
an offence that endangered a person’s life
(other than the life of the offender),
(f)
an offence that caused a serious risk to the
health or safety of the public or a section of the public,
(g)
an offence that seriously interfered with, or
seriously disrupted, or destroyed, an electronic system including, but not
limited to, any of the following:
(i)
an information system,
(ii)
a telecommunications system,
(iii)
a financial system,
(iv)
a system used for the delivery of essential
government services,
(v)
a system used for, or by, an essential public
utility,
(vi)
a system used for, or by, a transport
system,
(h)
an offence of attempting, assisting, aiding,
abetting, counselling, procuring, soliciting, being an accessory to,
encouraging, inciting or conspiring to commit any of the kinds of offences
mentioned in paragraphs (a)–(g).
(3)
An eligible offender’s offence occurred in
a terrorism
context if:
(a)
the offender committed the offender’s
offence with:
(i)
the intention of advancing a political, religious
or ideological cause, and
(ii)
the intention of coercing, or influencing by
intimidation, the government of an Australian jurisdiction or foreign country
(or of part of an Australian jurisdiction or foreign country) or of
intimidating the public or a section of the public,
or
(b)
the offender knew, or was reckless as to whether,
the offender’s offence would materially assist any other person to
commit:
(i)
an offence against section 310J of the Crimes Act 1900, or
(ii)
a NSW indictable offence that is a serious
offence committed by the other person with the intentions referred to in
paragraph (a), or
(iii)
a terrorism offence within the meaning of the
Crimes
Act 1914 of the Commonwealth.
(4)
In this section:
(a)
a reference to any person or property is a
reference to any person or property wherever situated, within or outside the
State (including within or outside Australia), and
(b)
a reference to the public includes a reference to
the public of another Australian jurisdiction or of a foreign
country.
10Convicted NSW terrorism
activity offender
(1)
In this Act, an eligible offender is a convicted
NSW terrorism activity offender if the offender is serving
(or is continuing to be supervised or detained under this Act after serving) a
sentence of imprisonment for a NSW indictable offence (the offender’s offence) and any of
the following apply in respect of the offender:
(a)
the offender has at any time been subject to a
control order,
(b)
the offender has at any time been a member of a
terrorist organisation,
(c)
the offender:
(i)
has made statements or engaged in other conduct
involving advocating support for engaging in any terrorist acts,
or
(ii)
is associated or otherwise affiliated with other
persons or with organisations advocating support for engaging in any terrorist
acts.
(2)
Subsection (1) (b) and (c) apply regardless of
whether or not the eligible offender has been convicted of an offence for the
conduct concerned (whether in Australia or elsewhere).
(3)
In this section:
terrorist
organisation has the same meaning as it has in Division 102
of Part 5.3 of the Commonwealth Criminal Code.
11Determining whether eligible
offender is convicted NSW underlying terrorism offender or convicted NSW
terrorism activity offender
In determining whether an eligible offender is a
convicted NSW underlying terrorism offender or convicted NSW terrorism
activity offender, the Supreme Court may take into account:
(a)
the views of the sentencing court at the time the
offender was sentenced for the offender’s offence,
and
(b)
the views of the sentencing court at the time a
person other than the offender was sentenced for an offence if the person was
a co-accused of the offender or was convicted of assisting, aiding, abetting,
counselling, procuring, soliciting, being an accessory to, encouraging,
inciting or conspiring to commit the offender’s offence,
and
(c)
evidence adduced in the proceedings for the
offender’s offence or in proceedings against another person for an
offence referred to in paragraph (b), and
(d)
any relevant terrorism intelligence,
and
(e)
the offender’s criminal history (including
prior convictions and findings of guilt in respect of offences committed in
the State or elsewhere), and any pattern of offending behaviour disclosed by
that history, and
(f)
the results of any assessment prepared by a
qualified psychiatrist, registered psychologist, registered medical
practitioner or other relevant expert as to the offender’s history of
behaviour (including any patterns in, or the progression of, that behaviour to
date), and
(g)
any information concerning the offender that the
Court considers relevant (including developmental or social factors and
behaviour while in custody), and
(h)
any report prepared by Corrective Services NSW,
the NSW Police Force or a prescribed terrorism intelligence authority
concerning the offender and the offender’s associates and affiliations,
and
(i)
information indicating that current or former
associates of the offender have been or are involved in terrorism activities,
and
(j)
any other information that the Court considers
relevant.
12Preliminary proceedings for
declaration that person is relevant offender
(1)Application for
declaration
The State may apply to the Supreme Court for a
declaration that a person is any of the following for the purposes of this
Act:
(a)
a convicted NSW terrorist
offender,
(b)
a convicted NSW underlying terrorism
offender,
(c)
a convicted NSW terrorism activity
offender.
(2)
An application for a declaration may be
made:
(a)
before an application for an order under Part 2
or 3 is made in respect of the person (but only during the period in which an
application for an extended supervision order or continuing detention order
can be made), or
(b)
at any time while an application for an order
under Part 2 or 3 in respect of the person is
pending.
(3)When declaration can be
made
The Supreme Court may make the declaration if
satisfied that the person is:
(a)
a convicted NSW terrorist offender,
or
(b)
a convicted NSW underlying terrorism offender,
or
(c)
a convicted NSW terrorism activity
offender.
(4)Duration of
declaration
A declaration takes effect when it is made and
remains in force until it expires or is revoked.
(5)
A declaration that a person is a convicted NSW
terrorism activity offender expires:
(a)
on the expiry of the period of 15 months (the
default
period) after the declaration is made,
or
(b)
if an application for an order under Part 2 or 3
is made, but not finally determined, within the default period—when the
application is finally determined.
(6)
For the purposes of subsection (5), an
application is not finally determined if:
(a)
any period for bringing an appeal under this Act
in respect of the application has not expired (ignoring any period that may be
available by way of extension of time to appeal), or
(b)
any appeal in respect of the application is
pending (whether or not it is an appeal brought as of
right).
(7)
The Supreme Court may revoke a declaration on the
application of the State or the person in respect of whom it is
made.
(8)Effect of
declaration
While a declaration is in force in respect of a
person, the State is not required to establish for the purposes of proceedings
for an order under Part 2 or 3 in respect of the person that:
(a)
the person is an eligible offender,
or
(b)
the person is a convicted NSW terrorist offender,
convicted NSW underlying terrorism offender or convicted NSW terrorism
activity offender (as the case requires).
(9)Further
applications
If the Supreme Court refuses to make a
declaration in respect of a person or a declaration expires or is revoked, the
refusal, expiry or revocation does not prevent:
(a)
another application for a declaration being made
in respect of the same person, or
(b)
the Supreme Court granting that application if
satisfied of any of the matters referred to in subsection (3) at that
time.
(10)Power of Supreme Court to make
declarations not limited
This section does not limit any other power of
the Supreme Court to make declarations.
Division 1.4Application of
Act
13Application of Act to offences
before commencement
This Act applies to and in respect of offences
committed before the date of assent to this Act in the same way as it applies
to and in respect of offences committed on or after that
date.
14Application of Act to
commenced sentences of imprisonment
This Act applies to and in respect of an eligible
offender who is serving a sentence of imprisonment that commenced before the
date of assent to this Act in the same way as it applies to and in respect of
an eligible offender who is serving a sentence of imprisonment that commences
on or after that date.
15Construction of legislation so
as not to exceed legislative power
(1)
Unless a contrary intention appears, if a
provision of this Act or an instrument made under this Act:
(a)
would, apart from this section, have an invalid
application, but
(b)
also has at least one valid
application,
it is the intention of the Parliament of New South Wales
that the provision is not to have the invalid application, but is to have
every valid application.
(2)
Despite subsection (1), the provision is not to
have a particular valid application if:
(a)
apart from this section, it is clear, taking into
account the provision’s context and the purposes or objects underlying
this Act, that the provision was intended to have that valid application only
if every invalid application, or a particular invalid application, of the
provision had also been within the legislative power of the Parliament of New
South Wales, or
(b)
the provision’s operation in relation to
that valid application would be different in a substantial respect from what
would have been its operation in relation to that valid application if every
invalid application of the provision had been within the legislative power of
the Parliament of New South Wales.
(3)
Subsection (2) does not limit the cases in which
a contrary intention may be taken to appear for the purposes of subsection
(1).
(4)
This section is in addition to, and not in
derogation of, section 31 of the Interpretation
Act 1987.
(5)
In this section:
application means an application in
relation to:
(a)
one or more particular persons, things, matters,
places, circumstances or cases, or
(b)
one or more classes (however defined or
determined) of persons, things, matters, places, circumstances or
cases.
invalid
application, in relation to a provision, means an
application because of which the provision exceeds the legislative power of
the Parliament of New South Wales.
valid
application, in relation to a provision, means an
application which, if it were the provision’s only application, would be
within the legislative power of the Parliament of New South
Wales.
Division 1.5Relationship of Act with other
laws
16Relationship of Act with
Crimes (High Risk Offenders) Act
2006
This Act does not limit the circumstances in
which an order can be made in respect of an eligible offender under the
Crimes (High Risk Offenders) Act
2006.
17Bail
Act 2013 does not apply
The Bail Act
2013 does not apply to or in respect of a person who is a
defendant in proceedings under this Act (except in proceedings for an offence
against this Act).
18Rules of
court
(1)
Rules of court may be made under the Supreme Court Act 1970 for regulating
the practice and procedure of the Supreme Court in respect of proceedings
under this Act.
(2)
This section does not limit the rule-making
powers conferred by the Supreme Court Act
1970.
Part 2Extended supervision
orders
Division 2.1Interpretation
19Definition
In this Part:
current
custody or supervision, in relation to an eligible offender
in respect of whom an application for an order is made under this Part, means
the custody or supervision to which the offender is subject at the time of the
application.
Division 2.2Supervision of certain
eligible offenders
20Supreme Court may make
extended supervision orders against eligible offenders if unacceptable
risk
The Supreme Court may make an order for the
supervision in the community of an eligible offender (called an extended supervision order)
if:
(a)
the offender is in custody or under
supervision:
(i)
while serving a sentence of imprisonment for a
NSW indictable offence, or
(ii)
under an existing interim supervision order,
extended supervision order, interim detention order or continuing detention
order, and
(b)
an application for the order is made in
accordance with this Part, and
(c)
the Supreme Court is satisfied that the offender
is any of the following:
(i)
a convicted NSW terrorist
offender,
(ii)
a convicted NSW underlying terrorism
offender,
(iii)
a convicted NSW terrorism activity offender,
and
(d)
the Supreme Court is satisfied to a high degree
of probability that the offender poses an unacceptable risk of committing a
serious terrorism offence if not kept under supervision under the
order.
21Determination of
risk
For the purposes of this Part, the Supreme Court
is not required to determine that the risk of an eligible offender committing
a serious terrorism offence is more likely than not in order to determine that
there is an unacceptable risk of the offender committing such an
offence.
Division 2.3Application for extended
supervision order
22State may apply for extended
supervision order
The State may apply to the Supreme Court for an
extended supervision order.
23Requirements with respect to
application
(1)
An application for an extended supervision order
may be made only in respect of an eligible offender who is in custody or under
supervision:
(a)
while serving a sentence of imprisonment for a
NSW indictable offence, or
(b)
under an existing interim supervision order,
extended supervision order, interim detention order or continuing detention
order.
(2)
An application for an extended supervision order
in respect of an eligible offender may not be made until the last 12 months of
the offender’s current custody or supervision.
(3)
An application must be supported by
documentation:
(a)
that addresses each of the matters referred to in
section 25 (3), and
(b)
that includes a report (prepared by a qualified
psychiatrist, registered psychologist, registered medical practitioner or
other relevant expert) that assesses the likelihood of the eligible offender
committing a serious terrorism offence.
(4)
An application may indicate the kinds of
conditions that are considered to be appropriate for inclusion under section
29 in the event that an extended supervision order is
made.
24Pre-trial
procedures
(1)
An application for an extended supervision order
must be served on the eligible offender concerned within 2 business days after
the application is filed in the Supreme Court or within such further time as
the Supreme Court may allow.
(2)
The State must disclose to the eligible offender
such documents, reports and other information as are relevant to the
proceedings on the application (whether or not intended to be tendered in
evidence):
(a)
in the case of anything that is available when
the application is made, as soon as practicable after the application is made,
and
(b)
in the case of anything that subsequently becomes
available, as soon as practicable after it becomes
available.
Note—
Section 51 (10) provides that the State must not
disclose a victim statement to the eligible offender unless the person who
made the statement consents to the disclosure.
(3)
However, the State is not required to disclose to
the eligible offender any document, report or other information except in
accordance with section 60 (or an order under that section) if:
(a)
the State or a prescribed terrorism intelligence
authority intends to make an application under that section for the document,
report or other information to be dealt with as terrorism intelligence,
or
(b)
the document, report or other information is the
subject of a pending application under that section for it to be dealt with as
terrorism intelligence, or
(c)
the Supreme Court has granted an application
under that section for the document, report or other information to be dealt
with as terrorism intelligence.
(4)
A preliminary hearing into the application is to
be conducted by the Supreme Court within 28 days after the application is
filed in the Supreme Court or within such further time as the Supreme Court
may allow.
(5)
If, following the preliminary hearing, it is
satisfied that the matters alleged in the supporting documentation would, if
proved, justify the making of an extended supervision order, the Supreme Court
must make orders:
(a)
appointing:
(i)
2 qualified psychiatrists, or
(ii)
2 registered psychologists,
or
(iii)
1 qualified psychiatrist and 1 registered
psychologist, or
(iv)
2 qualified psychiatrists and 2 registered
psychologists,
to conduct separate psychiatric or psychological
examinations (as the case requires) of the eligible offender and to furnish
reports to the Supreme Court on the results of those examinations,
and
(b)
directing the eligible offender to attend those
examinations.
(6)
Without limiting subsection (5) (a), the Supreme
Court may also make orders appointing any other relevant experts to furnish
reports to the Supreme Court in respect of the eligible offender on specified
matters.
(7)
If, following the preliminary hearing, it is not
satisfied that the matters alleged in the supporting documentation would, if
proved, justify the making of an extended supervision order, the Supreme Court
must dismiss the application.
Division 2.4Determination of
application
25Determination of application
for extended supervision order
(1)
The Supreme Court may determine an application
for an extended supervision order:
(a)
by making an extended supervision order,
or
(b)
by dismissing the
application.
(2)
In determining whether or not to make an extended
supervision order, the safety of the community must be the paramount
consideration of the Supreme Court.
(3)
In determining whether or not to make an extended
supervision order in respect of an eligible offender, the Supreme Court must
also have regard to the following matters in addition to any other matter it
considers relevant:
(a)
the reports received from the persons appointed
to conduct examinations of the offender, and the level of the offender’s
participation in any such examination,
(b)
the results of any other assessment prepared by a
qualified psychiatrist, registered psychologist, registered medical
practitioner or other relevant expert as to the likelihood of the offender
committing a serious terrorism offence, the willingness of the offender to
participate in any such assessment, and the level of the offender’s
participation in any such assessment,
(c)
the results of any assessment as to the
likelihood of persons with histories and characteristics similar to those of
the offender committing a serious terrorism offence,
(d)
any report prepared by Corrective Services NSW or
the NSW Police Force as to the extent to which the offender can reasonably and
practicably be managed in the community,
(e)
any report prepared by a prescribed terrorism
intelligence authority relevant to whether the offender can reasonably and
practicably be managed in the community,
(f)
any treatment or rehabilitation programs and
other programs or initiatives in which the offender has had an opportunity to
participate, the willingness of the offender to participate in any such
programs or initiatives, and the level of the offender’s participation
in any such programs or initiatives,
(g)
options (if any) available if the offender is
kept in custody or is in the community (whether or not under supervision) that
might reduce the likelihood of the offender re-offending over
time,
(h)
the likelihood that the offender will comply with
the obligations of an extended supervision order,
(i)
without limiting paragraph (h), the level of the
offender’s compliance with any obligations to which the offender is or
has been subject while:
(i)
on release on parole, or
(ii)
subject to a control order,
or
(iii)
subject to an earlier extended supervision order
or interim supervision order, or
(iv)
subject to any other order of a
court,
(j)
the offender’s criminal history (including
prior convictions and findings of guilt in respect of offences committed in
New South Wales or elsewhere), and any pattern of offending behaviour
disclosed by that history,
(k)
the views of the sentencing court at the time the
sentence of imprisonment was imposed on the offender,
(l)
any beliefs or commitments of the offender
(whether of an ideological, religious, political, social or other nature) that
support engaging or participating in terrorism activities,
(m)
any other information that is available as to the
likelihood that the offender will commit a serious terrorism
offence.
26Term of extended supervision
order
(1)
An extended supervision order commences when it
is made, or when the eligible offender’s current custody or supervision
expires, whichever is the later.
(2)
However the Supreme Court may, if an extended
supervision order is made in proceedings on an application for a continuing
detention order, defer the operation of an extended supervision order for a
period of up to 7 days (the deferral
period) if:
(a)
the Court considers that it is necessary to
detain the eligible offender for the deferral period to enable arrangements to
be made for supervision of the offender in the community,
and
(b)
it does not appear to the Court that an interim
detention order can be made for the interim detention of the eligible
offender.
(3)
On the deferral of the operation of an extended
supervision order, the Supreme Court may order that the eligible offender
concerned be detained for such period (not exceeding the deferral period)
after the offender’s current custody expires as is specified in the
order.
(4)
As soon as practicable after making an order
under subsection (3), the Supreme Court must issue a warrant for the committal
of the eligible offender for the specified period after the offender’s
current custody expires.
(5)
The warrant is sufficient authority for the
eligible offender to be kept in custody in accordance with the terms of the
warrant.
(6)
An extended supervision order expires at the end
of:
(a)
such period (not exceeding 3 years from the day
on which it commences) as is specified in the order, or
(b)
if the order is suspended for any period, the
period specified in paragraph (a) plus each period during which the order is
suspended.
(7)
An eligible offender’s obligations under an
extended supervision order are suspended while the offender is in lawful
custody, whether under this or any other Act or law.
(8)
Nothing in this section prevents the Supreme
Court from making a second or subsequent extended supervision order in respect
of the same eligible offender.
Division 2.5Interim supervision
orders
27Interim supervision
order
The Supreme Court may make an order for the
interim supervision of an eligible offender (called an interim supervision order) if, in
proceedings for an extended supervision order, it appears to the Court:
(a)
that the offender’s current custody or
supervision will expire before the proceedings are determined,
and
(b)
that the matters alleged in the supporting
documentation would, if proved, justify the making of an extended supervision
order.
28Term of interim supervision
order
(1)
An interim supervision order commences on the day
fixed in the order for its commencement (or if no such day is fixed, as soon
as it is made) and expires at the end of:
(a)
such period (not exceeding 28 days from the day
on which it commences) as is specified in the order, or
(b)
if the order is suspended for any
period—the period specified in paragraph (a) plus each period during
which the order is suspended.
(2)
However, the Supreme Court may defer the
operation of an interim supervision order in relation to an eligible offender
who is in current custody for a period of up to 7 days (the deferral period) if:
(a)
the Court considers that it is necessary to
detain the offender for the deferral period to enable arrangements to be made
for supervision of the offender in the community, and
(b)
it does not appear to the Court that an interim
detention order can be made for the interim detention of the
offender.
(3)
On the deferral of the operation of an interim
supervision order, the Supreme Court may order that the eligible offender
concerned be detained for a specified period (not exceeding the deferral
period) after the offender’s current custody
expires.
(4)
As soon as practicable after making an order
under subsection (3), the Supreme Court must issue a warrant for the committal
of the eligible offender for the specified period after the offender’s
current custody expires.
(5)
The warrant is sufficient authority for the
eligible offender to be kept in custody in accordance with the terms of the
warrant.
(6)
An interim supervision order, and the eligible
offender’s obligations under that interim supervision order, are
suspended during any period the offender is in lawful custody, whether under
this or any other Act or law.
(7)
An interim supervision order may be renewed from
time to time, but not so as to provide for the supervision of the eligible
offender under such an order for periods totalling more than 3
months.
(8)
Any day or part of a day on which an interim
supervision order is suspended does not count towards the 3-month limit
referred to in subsection (7).
Division 2.6General
29Conditions that may be imposed
on extended or interim supervision order
(1)
An extended supervision order or interim
supervision order may direct an eligible offender to comply with such
conditions as the Supreme Court considers appropriate, including (but not
limited to) directions requiring the offender to do any one or more of the
following:
(a)
to permit any enforcement officer to visit the
offender at the offender’s residential address at any time and, for that
purpose, to enter the premises at that address,
(b)
to permit any enforcement officer to access any
of the following:
(i)
a computer or related electronic equipment that
is at the offender’s residential address or in the possession of the
offender,
(ii)
data held within, or accessible from, the
computer or related electronic equipment (including data accessible by means
of an electronic identity),
(c)
to permit any enforcement officer to seize any
computer or other object at the offender’s residential address or in the
possession of the offender for the purpose of enabling it to be forensically
examined,
(d)
to use specified services or
facilities,
(e)
to make periodic reports to an enforcement
officer,
(f)
to notify an enforcement officer of any change in
the offender’s address,
(g)
to participate in intervention programs or
initiatives,
(h)
to wear electronic monitoring
equipment,
(i)
to reside at an address approved by an
enforcement officer,
(j)
not to reside in or resort to specified locations
or classes of locations,
(k)
not to associate or make contact with specified
persons or classes of persons,
(l)
not to engage in specified conduct or classes of
conduct,
(m)
not to engage in specified financial, property or
business dealings (including not to enter into specified agreements or hold
specified interests in connection with such dealings),
(n)
not to possess or use specified objects or
substances,
(o)
not to engage in specified employment or classes
of employment,
(p)
not to change the offender’s
name,
(q)
to comply with any obligation that could be
imposed on the offender under Part 3 of the Child Protection
(Offenders Registration) Act 2000 if the offender were a
registrable person within the meaning of that Act and were not the subject of
an interim supervision order or an extended supervision
order,
(r)
to comply with specified requirements in
connection with the offender’s access to and use of the
internet,
(s)
to provide any enforcement officer with
information about any one or more of the following:
(i)
a carriage service used, or intended to be used,
by the offender (including any telephone number used, or intended to be used,
by the offender),
(ii)
an internet service provider or carriage service
provider used, or intended to be used, by the offender,
(iii)
an internet connection used, or intended to be
used, by the offender (including whether the connection is a wireless,
broadband, Asymmetric Digital Subscriber Line (ADSL) or dial-up
connection),
(iv)
an electronic identity used, or intended to be
used, by the offender,
(t)
to provide any enforcement officer with requested
information in relation to any employment or any financial affairs of the
offender.
(2)
In this section:
carriage
service, carriage
service provider and internet
service provider have the same meanings as in the Telecommunications Act 1997 of the
Commonwealth.
electronic identity means each of
the following:
(a)
an email address,
(b)
a user name or other identity allowing access to
an instant messaging service,
(c)
a user name or other identity allowing access to
a chat room or social media on the internet,
(d)
any other user name or other identity allowing
access to the internet or an electronic communication
service.
30Breach of supervision
order
A person to whom an extended supervision order or
interim supervision order applies must comply with the requirements of the
order.
Maximum penalty: 500 penalty units or
imprisonment for 5 years, or both.
31Supervision order may be
varied or revoked
(1)
The Supreme Court may at any time vary or revoke
an extended supervision order or interim supervision order on the application
of the State or the eligible offender to whom it
applies.
(2)
The period of an order must not be varied so that
the period is greater than that otherwise permitted under this
Part.
(3)
Without limiting the grounds for revoking an
extended supervision order or interim supervision order, the Supreme Court may
revoke an extended supervision order or interim supervision order if satisfied
that circumstances have changed sufficiently to render the order
unnecessary.
(4)
For the purpose of ascertaining whether to make
such an application in relation to an extended supervision order, both the
Commissioner of Corrective Services and the Commissioner of Police must
provide the Attorney General with a report on the eligible offender at
intervals of not more than 12 months.
(5)
A report must indicate whether the Commissioner
concerned considers the continuation of the extended supervision order to be
necessary and appropriate.
32Expiry of
Part
(1)
The regulations may declare a day (the expiry day) on or after which
applications cannot be made or granted for orders under this
Part.
(2)
The regulations may make provision for or with
respect to matters of a savings or transitional nature consequent on the
declaration of the expiry day, including in respect of the expiry, variation,
suspension or revocation of existing orders under this
Part.
(3)
Subject to regulations made for the purposes of
subsection (2), an application cannot be made or granted for an order under
this Part on or after the expiry day.
Part 3Continuing detention
orders
Division 3.1Interpretation
33Definitions
In this Part:
current
custody, in relation to a detained offender in respect of
whom an application for an order is made under this Part, means the custody to
which the offender is subject at the time of the application.
detained
offender means a person who is in custody:
(a)
while serving a sentence of imprisonment for a
NSW indictable offence, or
(b)
under an existing continuing detention order,
emergency detention order or interim detention
order.
supervised offender means a person
in lawful custody or under supervision:
(a)
under an extended supervision order or an interim
supervision order, or
(b)
whose obligations under an extended supervision
order or an interim supervision order have been
suspended.
Division 3.2Detention of certain eligible
offenders
34Supreme Court may make
continuing detention orders against eligible offenders if unacceptable
risk
(1)
The Supreme Court may make an order for the
continued detention of an eligible offender (called a continuing detention order)
if:
(a)
the offender is a detained offender or supervised
offender, and
(b)
an application for the order is made in
accordance with this Part, and
(c)
the Supreme Court is satisfied that the offender
is any of the following:
(i)
a convicted NSW terrorist
offender,
(ii)
a convicted NSW underlying terrorism
offender,
(iii)
a convicted NSW terrorism activity offender,
and
(d)
the Supreme Court is satisfied to a high degree
of probability that the offender poses an unacceptable risk of committing a
serious terrorism offence if not kept in detention under the
order.
(2)
However, the Supreme Court must not make a
continuing detention order in respect of a supervised offender who is under an
extended supervision order or an interim supervision order that has not been
suspended (the existing
supervision order) unless:
(a)
the offender has been found guilty of an offence
under section 30 in respect of the existing supervision order,
or
(b)
the Supreme Court is satisfied that the offender
poses an unacceptable risk of committing a serious terrorism offence if a
continuing detention order is not made because of altered circumstances since
the making of the existing supervision order.
(3)
Without limiting the matters that the Supreme
Court may take into account for the purposes of subsection (2) (b), the Court
may take into account the failure to comply, or an allegation that the
supervised offender has failed to comply, with any requirement of an existing
supervision order.
35Determination of
risk
For the purposes of this Part, the Supreme Court
is not required to determine that the risk of an eligible offender committing
a serious terrorism offence is more likely than not in order to determine that
there is an unacceptable risk of the offender committing such an
offence.
Division 3.3Application for continuing
detention order
36State may make application for
continuing detention order
The State may apply to the Supreme Court for a
continuing detention order.
37Requirements for
application
(1)
An application for a continuing detention order
may be made only in respect of:
(a)
a detained offender, or
(b)
a supervised offender.
(2)
An application for a continuing detention order
in respect of a detained offender may not be made more than 12 months
before:
(a)
the end of the offender’s total sentence,
or
(b)
the expiry of the existing continuing detention
order,
as appropriate.
(3)
An application in respect of a supervised
offender who is serving a sentence of imprisonment may not be made more than
12 months before the end of the person’s total
sentence.
(4)
An application must be supported by
documentation:
(a)
that addresses each of the matters referred to in
section 39 (3), and
(b)
that includes a report (prepared by a qualified
psychiatrist, registered psychologist, registered medical practitioner or
other relevant expert) that assesses the likelihood of the eligible offender
committing a serious terrorism offence.
(5)
An application may indicate the kinds of
conditions that are considered to be appropriate for inclusion under section
29 in the event that an extended supervision order is
made.
38Pre-trial
procedures
(1)
An application for a continuing detention order
must be served on the eligible offender concerned within 2 business days after
the application is filed in the Supreme Court or within such further time as
the Supreme Court may allow.
(2)
The State must disclose to the eligible offender
such documents, reports and other information as are relevant to the
proceedings on the application (whether or not intended to be tendered in
evidence):
(a)
in the case of anything that is available when
the application is made, as soon as practicable after the application is made,
and
(b)
in the case of anything that subsequently becomes
available, as soon as practicable after it becomes
available.
Note—
Section 51 (10) provides that the State must not
disclose a victim statement to the eligible offender unless the person who
made the statement consents to the disclosure.
(3)
However, the State is not required to disclose to
the eligible offender any document, report or other information except in
accordance with section 60 (or an order under that section) if:
(a)
the State or a prescribed terrorism intelligence
authority intends to make an application under that section for the document,
report or other information to be dealt with as terrorism intelligence,
or
(b)
the document, report or other information is the
subject of a pending application under that section for it to be dealt with as
terrorism intelligence, or
(c)
the Supreme Court has granted an application
under that section for the document, report or other information to be dealt
with as terrorism intelligence.
(4)
A preliminary hearing into the application is to
be conducted by the Supreme Court within 28 days after the application is
filed in the Supreme Court or within such further time as the Supreme Court
may allow.
(5)
If, following the preliminary hearing, it is
satisfied that the matters alleged in the supporting documentation would, if
proved, justify the making of a continuing detention order or extended
supervision order, the Supreme Court must make orders:
(a)
appointing:
(i)
2 qualified psychiatrists, or
(ii)
2 registered psychologists,
or
(iii)
1 qualified psychiatrist and 1 registered
psychologist, or
(iv)
2 qualified psychiatrists and 2 registered
psychologists,
to conduct separate psychiatric or psychological
examinations (as the case requires) of the eligible offender and to furnish
reports to the Supreme Court on the results of those examinations,
and
(b)
directing the eligible offender to attend those
examinations.
(6)
Without limiting subsection (5) (a), the Supreme
Court may also make orders appointing any other relevant experts to furnish
reports to the Supreme Court in respect of the eligible offender on specified
matters.
(7)
If, following the preliminary hearing, it is not
satisfied that the matters alleged in the supporting documentation would, if
proved, justify the making of a continuing detention order or extended
supervision order, the Supreme Court must dismiss the
application.
Division 3.4Determination of
application
39Determination of application
for continuing detention order
(1)
The Supreme Court may determine an application
under this Part for a continuing detention order:
(a)
by making an extended supervision order,
or
(b)
by making a continuing detention order,
or
(c)
by dismissing the
application.
(2)
In determining whether or not to make a
continuing detention order or extended supervision order, the safety of the
community must be the paramount consideration of the Supreme
Court.
(3)
In determining whether or not to make a
continuing detention order or extended supervision order in respect of an
eligible offender, the Supreme Court must also have regard to the following
matters in addition to any other matter it considers relevant:
(a)
the reports received from the persons appointed
to conduct examinations of the offender, and the level of the offender’s
participation in any such examination,
(b)
the results of any other assessment prepared by a
qualified psychiatrist, registered psychologist, registered medical
practitioner or other relevant expert as to the likelihood of the offender
committing a serious terrorism offence, the willingness of the offender to
participate in any such assessment, and the level of the offender’s
participation in any such assessment,
(c)
the results of any assessment as to the
likelihood of persons with histories and characteristics similar to those of
the offender committing a serious terrorism offence,
(d)
any report prepared by Corrective Services NSW or
the NSW Police Force as to the extent to which the offender can reasonably and
practicably be managed in the community,
(e)
any report prepared by a prescribed terrorism
intelligence authority relevant to whether the offender can reasonably and
practicably be managed in the community,
(f)
any treatment or rehabilitation programs and
other programs or initiatives in which the offender has had an opportunity to
participate, the willingness of the offender to participate in any such
programs or initiatives, and the level of the offender’s participation
in any such programs or initiatives,
(g)
options (if any) available if the offender is
kept in custody or is in the community (whether or not under supervision) that
might reduce the likelihood of the offender re-offending over
time,
(h)
for an extended supervision order—the
likelihood that the offender will comply with the obligations of the extended
supervision order,
(i)
without limiting paragraph (h), the level of the
offender’s compliance with any obligations to which the offender is or
has been subject while:
(i)
on release on parole, or
(ii)
subject to a control order,
or
(iii)
subject to an extended supervision order or
interim supervision order, or
(iv)
subject to any other order of a
court,
(j)
the offender’s criminal history (including
prior convictions and findings of guilt in respect of offences committed in
New South Wales or elsewhere), and any pattern of offending behaviour
disclosed by that history,
(k)
the views of the sentencing court at the time the
sentence of imprisonment was imposed on the offender,
(l)
any beliefs or commitments of the offender
(whether of an ideological, religious, political, social or other nature) that
support engaging or participating in terrorism activities,
(m)
any other information that is available as to the
likelihood that the offender will commit a serious terrorism
offence.
(4)
In determining whether or not to make a
continuing detention order, the Supreme Court is not to consider the ability
to take action for a breach of the order in relation to whether there is an
unacceptable risk of the eligible offender committing serious terrorism
offences.
40Term of continuing detention
order
(1)
A continuing detention order:
(a)
commences when it is made, or when the eligible
offender’s current custody expires, whichever is the later,
and
(b)
expires at the end of such period (not exceeding
3 years from the day on which it commences) as is specified in the
order.
(2)
Despite subsection (1), a continuing detention
order made on application under this Part in respect of a supervised offender
who is not in custody commences when it is made and expires at the end of such
period (not exceeding 3 years from the day on which it commences) as is
specified in the order.
(3)
An eligible offender’s custody under a
continuing detention order is suspended while the offender is in lawful
custody under any other Act or law, but that suspension does not affect the
expiry date of the order.
(4)
Nothing in this section prevents the Supreme
Court from making a second or subsequent continuing detention order in respect
of the same eligible offender.
Division 3.5Interim detention
orders
41Interim detention
order
The Supreme Court may make an order for the
interim detention of an eligible offender (called an interim detention order) if, in
proceedings on an application for a continuing detention order, it appears to
the Court:
(a)
that the offender’s current custody (if
any) will expire before the proceedings are determined,
and
(b)
that the matters alleged in the supporting
documentation would, if proved, justify the making of an extended supervision
order or continuing detention order.
42Term of interim detention
order
(1)
An interim detention order in respect of an
eligible offender commences on the day fixed in the order for its commencement
(or, if no such day is fixed, as soon as it is made) and expires:
(a)
at the end of such period (not exceeding 28 days
from the day on which it commences) as is specified in the order,
or
(b)
if the order is suspended for any
period—the period specified in paragraph (a) plus each period during
which the order is suspended, or
(c)
on the commencement of an extended supervision
order made in respect of the offender.
(2)
An eligible offender’s custody under an
interim detention order is suspended during any period the offender is in
lawful custody, whether under this or any other Act or
law.
(3)
An interim detention order may be renewed from
time to time, but not so as to provide for the detention of the eligible
offender under such an order for periods totalling more than 3
months.
Division 3.6Emergency detention
orders
43Ex parte application for
emergency detention order
(1)
The State may apply to the Supreme Court for an
order for the detention of an eligible offender (called an emergency
detention order) who is the subject of an extended
supervision order or an interim supervision order and who, because of altered
circumstances, poses an unacceptable and imminent risk of committing a serious
terrorism offence if the emergency detention order is not
made.
(2)
The Supreme Court may hear an application for an
emergency detention order in the absence of the eligible offender
concerned.
44Making of emergency detention
orders
(1)
The Supreme Court may make an emergency detention
order if it appears to the Court that the matters alleged in support of the
application for the order would, if proved, establish that because of altered
circumstances, the eligible offender poses an unacceptable and imminent risk
of committing a serious terrorism offence if the emergency detention order is
not made.
(2)
The Supreme Court is not to make more than one
emergency detention order in respect of the same occasion of altered
circumstances.
45Requirements with respect to
application
(1)
An application for an emergency detention order
must be supported by an affidavit of a relevant officer that addresses each of
the following matters:
(a)
the altered circumstances that give rise to the
application,
(b)
the reasons why because of the altered
circumstances the extended supervision order or interim supervision order to
which the eligible offender is currently subject will not prevent the offender
from posing an unacceptable and imminent risk of committing a serious
terrorism offence,
(c)
the reasons why there are no other practicable
and available means of ensuring that the eligible offender does not pose an
imminent risk of committing a serious terrorism offence (other than
detention).
(2)
The State:
(a)
must notify the Legal Aid Commission of New South
Wales in writing when a decision is made to file an application in the Supreme
Court for an emergency detention order in respect of an eligible offender,
and
(b)
if requested to do so by the Commission—is
to supply the Commission with a copy of the application and supporting
affidavit.
(3)
However, the State may supply copies of an
application and supporting affidavit requested by the Commission that have
been redacted to the extent required to prevent the disclosure of any
document, report or other information if:
(a)
the State or a prescribed terrorism intelligence
authority intends to make an application under section 60 for the document,
report or other information to be dealt with as terrorism intelligence,
or
(b)
the document, report or other information is the
subject of a pending application under section 60 for it to be dealt with as
terrorism intelligence, or
(c)
the Supreme Court has granted an application
under section 60 for the document, report or other information to be dealt
with as terrorism intelligence.
(4)
In this section:
relevant
officer means:
(a)
the Commissioner of Police,
or
(b)
the Commissioner of Corrective Services,
or
(c)
a corrective services officer of the rank of
Assistant Commissioner.
46Term of emergency detention
order
(1)
An emergency detention order can be made to have
effect for no longer than is reasonably necessary to enable action to be taken
under this Act to ensure that the risk of the eligible offender committing a
serious terrorism offence is not unacceptable.
(2)
An emergency detention order commences as soon as
it is made and expires at the end of such period (not exceeding 120 hours from
when it commences) as is specified in the order or at such earlier time as may
be specified by the Supreme Court when making the order.
Division 3.7General
47Detention order causes any
supervision order to cease to have effect
(1)
On the making of a continuing detention order in
respect of an eligible offender, any interim supervision order or extended
supervision order in respect of the eligible offender expires and ceases to
have effect.
(2)
On the making of an interim detention order in
respect of an eligible offender, any interim supervision order or extended
supervision order in respect of the offender is suspended and ceases to have
effect until such time as the interim detention order
expires.
(3)
On the making of an emergency detention order in
respect of an eligible offender, any interim supervision order or extended
supervision order in respect of the offender is suspended and ceases to have
effect until such time as the emergency detention order
expires.
48Detention order may be varied
or revoked
(1)
The Supreme Court may at any time vary or revoke
a continuing detention order, interim detention order or emergency detention
order on the application of the State or the eligible offender to whom it
applies.
(2)
The period of an order must not be varied so that
the period is greater than that otherwise permitted under this
Part.
(3)
Without limiting the grounds for revoking a
continuing detention order, interim detention order or emergency detention
order, the Supreme Court may revoke a continuing detention order, interim
detention order or emergency detention order if satisfied that circumstances
have changed sufficiently to render the order
unnecessary.
(4)
For the purpose of ascertaining whether to make
an application under this section in relation to a continuing detention order,
both the Commissioner of Corrective Services and the Commissioner of Police
must provide the Attorney General with a report on the eligible offender at
intervals of not more than 12 months.
(5)
A report must indicate whether the Commissioner
concerned considers the continuation of the continuing detention order to be
necessary and appropriate.
49Warrant of
committal
(1)
As soon as practicable after making a continuing
detention order, interim detention order or emergency detention order in
respect of an eligible offender, the Supreme Court must issue a warrant for
the committal of the offender to a correctional centre for the period
specified in the order.
(2)
The warrant is sufficient authority:
(a)
for any police officer to convey, or arrest and
convey, the eligible offender to the correctional centre identified in the
warrant, and
(b)
for the governor of the correctional centre to
keep the eligible offender in his or her custody in accordance with the terms
of the warrant.
Part 4Supreme Court
proceedings
50Nature and conduct of
proceedings
(1)
Proceedings under this Act (including proceedings
on an appeal under this Act) are civil proceedings and, to the extent to which
this Act does not provide for their conduct, are to be conducted in accordance
with the law (including the rules of evidence) relating to civil
proceedings.
(2)
To avoid doubt, a provision of this Act that
provides for a document, report or other information to be admissible in
proceedings under this Act despite any Act or law to the contrary does not
affect any rule of evidence with respect to the relevance or probative value
of the document, report or other information once it is admitted into
evidence.
51Victim
statements
(1)
As soon as practicable after an application for
an order under Part 2 or 3 is made in respect of an eligible offender who is a
convicted NSW terrorist offender or convicted NSW underlying terrorism
offender, the person acting on behalf of the State for the purposes of the
application must take such steps as are reasonable (or, if the application
concerned is for an emergency detention order, as are practicable in the
circumstances) to ensure that written notice of the application is given
to:
(a)
each victim of the offender,
or
(b)
if any such victim is under 18 years of age or
lacks legal capacity—that victim’s parent or
guardian.
(2)
The notice must inform the person that the person
may make a statement orally before the Supreme Court, or provide a statement
in writing, about:
(a)
the person’s views about the order and any
conditions to which the order may be subject, and
(b)
any other matters prescribed by the
regulations.
(3)
It is sufficient for the notice to be sent to the
person at the person’s last known address as recorded in the Victims
Register.
(4)
A statement in writing must be provided before
the date specified in the notice.
(5)
Any statement in writing received before the
final hearing date in respect of the application may be placed before the
Supreme Court for consideration in respect of the
application.
(6)
An oral statement may be made at such time during
the proceedings on the application before the Supreme Court makes its decision
on the application as the Supreme Court determines.
(7)
The Supreme Court is to hear an oral statement in
the absence of the eligible offender unless the person giving the statement
consents to the offender being present.
(8)
The Supreme Court may arrange for an oral
statement to be made by way of closed circuit
television.
(9)
A person who makes a statement may amend or
withdraw the statement.
(10)
The Supreme Court and the State must not disclose
a statement (other than one given in the presence of the eligible offender in
accordance with subsection (7)) to the offender to which the application
relates unless the person who made the statement consents to the
disclosure.
(11)
If consent is not provided the Supreme Court
may:
(a)
reduce the weight given to the statement,
and
(b)
take reasonable steps to disclose to the eligible
offender, or the offender’s legal representative, the substance of the
statement but only if the Court is satisfied that those steps could not
reasonably be expected to lead to the identification of the victim or the
person who made the statement.
(12)
In this section:
victim of an eligible offender means
a victim who is recorded on the Victims Register in respect of the offender
for the purposes of section 256 (2) (c) of the Crimes
(Administration of Sentences) Act 1999.
Victims
Register has the same meaning it has in the Crimes (Administration of Sentences) Act
1999.
52Submissions by prescribed
terrorism intelligence authorities
(1)
The Supreme Court may allow a prescribed
terrorism intelligence authority to make submissions to the Court in respect
of any of the following if the Court considers that it would assist the Court
to determine the proceedings:
(a)
an application for a declaration under section
12,
(b)
a preliminary hearing under section 24 or
38,
(c)
an application for an order under Part 2 or
3.
(2)
The Supreme Court may allow the submissions to be
made either orally or in writing (or both).
(3)
The Supreme Court may take the submissions into
account in determining the proceedings.
53Right of
appeal
(1)
An appeal to the Court of Appeal lies from any
determination of the Supreme Court to make, or to refuse to make, any of the
following:
(a)
a declaration under section
12,
(b)
an order under Part 2 or
3.
(2)
The appeal is to be by way of a rehearing under
section 75A of the Supreme Court Act
1970.
(3)
The appeal must be made within the period of 28
days after the determination was made unless the Court of Appeal grants leave
for it to be made after that time.
(4)
The making of an appeal does not stay the
operation of the declaration or order under appeal.
(5)
If the Court of Appeal remits a matter to the
Supreme Court for decision after an appeal is made, the declaration or order
under appeal continues in force, subject to any order made by the Court of
Appeal.
(6)
Without limiting any other jurisdiction it may
have, if the Court of Appeal remits a matter to the Supreme Court for decision
after an appeal is made, the Court of Appeal may make an interim order
revoking or varying the declaration or order under
appeal.
(7)
Section 101 of the Supreme Court Act 1970 does not apply in
respect of an appeal against a determination referred to in subsection
(1).
(8)
Except as provided by subsection (7), this
section does not limit any right of appeal that may exist apart from this
Act.
54Hearings
This Act does not affect the right of any party
to proceedings under this Act:
(a)
to appear, either personally or by the
party’s legal representative, or
(b)
to call witnesses and give evidence,
or
(c)
to cross-examine witnesses,
or
(d)
to make submissions to the Supreme Court on any
matter connected with the proceedings.
55Costs not to be awarded
against offender
An order for costs may not be made against an
eligible offender in relation to any proceedings under this Act (including
proceedings on an appeal under this Act).
56Preservation of Supreme Court
jurisdiction
Except as provided by section 53 (7), nothing in
this Act limits the jurisdiction of the Supreme Court apart from this
Act.
Part 5Information about eligible
offenders
57Definition
In this Part:
offender
information means any document, report or other information
that relates to the behaviour, beliefs, financial circumstances, or physical
or mental condition, of an eligible offender, and includes terrorism
intelligence about the offender.
58Requirement to provide
offender information to Attorney General
(1)
The Attorney General may in the circumstances
prescribed by the regulations, by order in writing served on a person, require
that person to provide the Attorney General with offender information of a
kind prescribed by the regulations that is in the person’s possession or
under the person’s control.
(2)
A person on whom an order has been duly served
must comply with the order.
Maximum penalty (subsection (2)):
(a)
in the case of a corporation—100 penalty
units, or
(b)
in the case of an individual—100 penalty
units or imprisonment for 2 years (or both).
59Request to provide offender
information to Attorney General
The Attorney General may request:
(a)
a court to provide any offender information to
the Attorney General that is held by the court, or
(b)
a person in another Australian jurisdiction to
provide offender information that is in the person’s possession or under
the person’s control.
60Use of offender information
involving terrorism intelligence
(1)Making of
applications
The Attorney General or a prescribed terrorism
intelligence authority may make an application to the Supreme Court in any
proceedings before the Court under this Act for particular offender
information to be dealt with as terrorism intelligence in the
proceedings.
(2)
The Supreme Court may grant an application for
particular offender information to be dealt with as terrorism intelligence in
the proceedings if the Court is satisfied that:
(a)
the information was provided to the Attorney
General under this Part, and
(b)
the information is terrorism
intelligence.
(3)Steps to maintain
confidentiality
The Supreme Court is to take steps to maintain
the confidentiality of such terrorism intelligence, including steps to receive
evidence and hear argument about the intelligence in
private.
(4)
Subject to any agreement under subsection (5) and
the regulations, the Supreme Court is to allow one of the following forms of
access to the terrorism intelligence to be given to a party and the
party’s legal representatives (having regard to what the Court considers
appropriate because of the nature of the intelligence and the degree of risk
of disclosure to non-parties by the party or the legal
representatives):
(a)
providing both the party and the party’s
legal representatives with a copy of the intelligence,
(b)
providing the party’s legal representatives
with a copy of the intelligence and allowing the party to view (but not have a
copy of) that intelligence,
(c)
providing the party’s legal representatives
with a copy of the intelligence, but denying the party any form of access to
that intelligence,
(d)
allowing both the party and the party’s
legal representatives to view (but not have a copy of) the
intelligence,
(e)
allowing the party’s legal representatives
to view (but not have a copy of) the intelligence, but denying the party any
form of access to that intelligence.
(5)Agreements concerning dealing
with terrorism intelligence under section
An agreement may be entered at any time in the
proceedings by the following persons as to arrangements about the disclosure,
protection, storage, handling or destruction of the terrorism intelligence in
the proceedings:
(a)
the Attorney General on behalf of the
State,
(b)
if the terrorism intelligence is provided by a
prescribed terrorism intelligence authority—the
authority,
(c)
one or more other parties to the proceedings (or
their legal representatives on their behalf).
(6)Orders by Supreme Court for
purposes of section
The Supreme Court may make such orders that it
considers appropriate:
(a)
to prohibit or restrict access to, or the
disclosure or publication of, the terrorism intelligence for the purposes of
this section, or
(b)
to give effect to an agreement under subsection
(5).
(7)
A person is guilty of an offence if the person
contravenes an order under this section.
Maximum penalty:
(a)
in the case of a corporation—100 penalty
units, or
(b)
in the case of an individual—100 penalty
units or imprisonment for 2 years (or both).
(8)
A person is guilty of an offence against this
subsection if the person commits an offence against subsection (7) in
circumstances in which the person:
(a)
intends to endanger the health or safety of any
person or prejudice the effective conduct of an investigation into a relevant
indictable offence, or
(b)
knows that, or is reckless as to whether, the
disclosure of the information:
(i)
endangers or will endanger the health or safety
of any person, or
(ii)
prejudices or will prejudice the effective
conduct of an investigation into a relevant indictable
offence.
Maximum penalty: imprisonment for 7
years.
(9)Regulations concerning dealing
with terrorism intelligence under section
The regulations may make provision for or with
respect to:
(a)
the ways in which terrorism intelligence to which
this section applies is to be stored, handled or destroyed,
and
(b)
the ways in which, and places at which, terrorism
intelligence to which this section applies may be accessed and documents or
records relating to such intelligence may be
prepared.
(10)Definition
In this section:
relevant
indictable offence means an offence against a law of this
State or any other Australian jurisdiction that may be prosecuted on
indictment.
61Admissibility of documents or
reports provided under Part
Any document or report (or a copy of a document
or report) provided to the Attorney General under this Part is admissible in
proceedings under this Act despite any Act or law to the
contrary.
Part 6Role of HRO Assessment
Committee and inter-agency co-operation
62Meaning of “relevant
agency”
For the purposes of this Part, each of the
following is a relevant
agency:
(a)
Corrective Services NSW,
(b)
the Department of Family and Community
Services,
(c)
the Justice Health and Forensic Mental Health
Network,
(d)
the Department of Justice,
(e)
the NSW Police Force,
(f)
the Ministry of Health,
(g)
any other agency of any Australian jurisdiction
that is prescribed by the regulations as a relevant
agency.
63Functions of HRO Assessment
Committee
Without limiting its functions under Part 4A of
the Crimes (High Risk Offenders) Act 2006,
the HRO Assessment Committee has the following functions:
(a)
to review the risk assessments of eligible
offenders and make recommendations to the Commissioner of Corrective Services
for the taking of action by the State under this Act in respect of those
offenders,
(b)
to facilitate co-operation between and the
co-ordination of relevant agencies in the exercise of their functions in
connection with risk assessment and management of eligible offenders who could
be subject to this Act (the high risk
terrorism offender functions of relevant
agencies),
(c)
to monitor and provide expert oversight of the
exercise of the high risk terrorism offender functions of relevant agencies
for the purpose of identifying opportunities for improved outcomes in
individual cases and opportunities for systemic improvement and removal of
inter-agency barriers to the effective exercise of high risk terrorism
offender functions,
(d)
to facilitate information sharing between
relevant agencies in connection with the exercise of their high risk terrorism
offender functions,
(e)
to develop best practice standards and guidelines
for the exercise by relevant agencies of their high risk terrorism offender
functions,
(f)
to identify gaps in resourcing, service provision
and training that may impact on the proper and effective exercise of high risk
terrorism offender functions,
(g)
to conduct research into the effectiveness of
this Act in ensuring the safety and protection of the community and to
disseminate the results of that research,
(h)
such other functions in connection with the
operation of this Act as the Minister may from time to time
direct.
Note—
Part 4A of the Crimes (High Risk
Offenders) Act 2006 provides for the establishment of the
HRO Assessment Committee and its functions. It also makes provision for the
establishment of sub-committees and the furnishing of reports and information
by it.
64Inter-agency
co-operation
(1)
Each relevant agency of the State is under a duty
to co-operate with other relevant agencies in the exercise of the functions of
the agency that are concerned with risk assessment and management of eligible
offenders who could be subject to this Act (high risk
terrorism offender functions).
(2)
The duty to co-operate includes the following
duties:
(a)
the duty to disclose information to another
relevant agency that is likely to be of assistance to the other agency in the
exercise of its high risk terrorism offender functions,
(b)
the duty to provide reasonable assistance and
support to another relevant agency in connection with the exercise by the
other relevant agency of its high risk terrorism offender
functions,
(c)
the duty to co-operate in connection with the
exercise of the functions of the HRO Assessment
Committee.
(3)
Co-operation between relevant agencies in the
exercise of high risk terrorism offender functions can include (but is not
limited to) any of the following:
(a)
the development of multi-agency management plans
for high risk offenders,
(b)
providing assistance and support to high risk
offenders through joint programs.
(4)
Any duty to disclose information under this
section is subject to the requirements of any applicable co-operative
protocols under section 65 concerning disclosure or non-disclosure of
information that is terrorism intelligence.
65Exchange of information and
co-operative management of offenders
(1)
A relevant agency of the State may enter into
arrangements (co-operative protocols) with other
relevant agencies to enable information held by each of the agencies concerned
to be shared or exchanged between those agencies and the co-operative
management of eligible offenders who could be subject to this
Act.
(2)
The information to which a co-operative protocol
may relate is limited to the following:
(a)
information concerning eligible
offenders,
(b)
any other information that may be prescribed by
the regulations.
(3)
Under a co-operative protocol, each relevant
agency of the State the subject of the arrangement is authorised:
(a)
to request and receive information held by any
other relevant agency the subject of the arrangement, and
(b)
to disclose information to any of those relevant
agencies,
without the consent of any person concerned, but only to
the extent that the information is reasonably necessary to assist in the
exercise of functions under this Act or the functions of the relevant agencies
concerned.
(4)
This section does not limit the operation of any
Act under which the relevant agency is authorised or required to disclose
information to another person or body.
Part 7Miscellaneous
66Attorney General or prescribed
person to act on behalf of State
The Attorney General (or any other person
prescribed by the regulations) is entitled to act on behalf of the State for
the purposes of applications made under this Act.
67Exchange of information about
terrorism activities with other Australian jurisdictions and their
agencies
(1)
The Attorney General may, on behalf of the State
(or any of its agencies), enter into an agreement (a terrorism
information exchange agreement) with one or more other
Australian jurisdictions (or one or more of their agencies) for the exchange
or sharing of information that the parties hold about terrorism activities or
suspected terrorism activities.
(2)
The Attorney General may agree to such terms as
the Attorney General considers appropriate for inclusion in a terrorism
information exchange agreement.
(3)
If information to which a terrorism information
exchange agreement applies is held by an agency of the State, the agency is
authorised:
(a)
to request and receive information held by any
other agency to which the agreement applies in accordance with the terms of
the agreement, and
(b)
to disclose information it holds to any of those
agencies in accordance with the terms of the
agreement,
without the consent of any person concerned, but only to
the extent that the information is reasonably necessary to assist in the
exercise of functions under this Act.
(4)
The Attorney General is also authorised to use
information about terrorism activities or suspected terrorism activities
obtained under a terrorism information exchange agreement (without the consent
of any person concerned) for the purposes of any of the following, but only in
accordance with the terms of the agreement:
(a)
an application for a declaration under section
12,
(b)
a preliminary hearing under section 24 or
38,
(c)
an application for an order under Part 2 or
3.
(5)
This section does not limit the operation of any
Act under which the State (or its agencies) are authorised or required to
disclose information to another person or body.
(6)
In this section:
agency includes a prescribed
terrorism intelligence authority.
68Proceedings for
offences
Proceedings for an offence under this Act (except
against section 30 or 60 (7) or (8)) or the regulations are to be dealt with
summarily before the Local Court.
Note—
Chapter 5 of the Criminal
Procedure Act 1986 (which relates to the summary disposal
of certain indictable offences unless an election is made to proceed on
indictment) applies to and in respect of an offence under section 30 or 60 (7)
or (8). See Table 2 of Schedule 1 to that Act.
69Orders may be made at same
time
(1)
Nothing in this Act prevents the Supreme Court
from making an extended supervision order in respect of a person at the same
time that it makes a continuing detention order in respect of the
person.
(2)
In such a case (and despite section 28 (1)), the
extended supervision order commences on the expiry of the continuing detention
order and expires:
(a)
at the end of such period (not exceeding 3 years
from the day on which it commences) as is specified in the order,
or
(b)
if the order is suspended for any period, the
period specified in paragraph (a) plus each period during which the order is
suspended.
70Eligible offenders may be
warned about application of Act
A court that sentences a person for a NSW
indictable offence may cause the person to be advised of the existence of this
Act and of its application to the offence if the court considers that it is
appropriate in the circumstances to do so unless the person is not present at
the time of sentencing.
71Disclosure and use of
application documentation
(1)
The State may disclose an expert report
concerning an eligible offender:
(a)
to a corrective services officer or any other
person responsible for the supervision (whether in custody or in the
community), treatment or risk assessment of the offender for use solely in
providing rehabilitation, care or treatment of the offender,
and
(b)
to any person in connection with the exercise of
the person’s functions under this Act.
(2)
An expert report concerning an eligible offender
may be disclosed and used in any proceedings in respect of the offender if the
Supreme Court determines that:
(a)
the proceedings are closely related to the
proceedings under section 24 or 38 in which the expert report was used,
and
(b)
it is in the public interest,
and
(c)
the information would inform the Supreme Court
about the history of the defendant’s mental state with respect to his or
her offending.
(3)
The disclosure and use of an expert report for a
purpose referred to in subsection (1) or (2) is permitted despite this Act or
any other law to the contrary or any duty of confidentiality concerning the
expert report.
(4)
This section does not authorise the further
disclosure of an expert report by the person to whom it was disclosed in
accordance with this section.
(5)
In this section:
disclose an expert report includes
the following:
(a)
to make available,
(b)
to disclose copies, contents or descriptions of
the report.
expert
report concerning an eligible offender means a report
prepared as referred to in section 23 (3) or 37 (4), or received from persons
appointed under section 24 (5) or (6) or 38 (5) or (6), concerning an eligible
offender who is the subject of an application for an extended supervision
order or continuing detention order.
use of an expert report includes use
of copies, contents or descriptions of that report.
72Protection of certain persons
from liability
No action lies against any person (including the
State) for or in respect of any act or omission done or omitted by the person
if it was done or omitted in good faith for the purposes of, or in connection
with the administration or execution of, this Act.
73Evidentiary
certificates
A certificate issued by the Commissioner of
Corrective Services that states that an extended supervision order imposed on
a specified offender was suspended under section 26 and the date of the expiry
of the order in accordance with that section is admissible in any legal
proceedings despite any Act or law to the contrary and is evidence of the
facts so stated.
74Regulations
(1)
The Governor may make regulations, not
inconsistent with this Act, for or with respect to any matter that by this Act
is required or permitted to be prescribed or that is necessary or convenient
to be prescribed for carrying out or giving effect to this
Act.
(2)
The regulations may create offences punishable by
a penalty not exceeding 100 penalty units.
(3)
Section 5 of the Subordinate
Legislation Act 1989 does not apply to the first principal
statutory rule that is made under this Act.
Schedule 1Savings, transitional and
other provisions
Part 1General
1Regulations
(1)
The regulations may contain provisions of a
savings or transitional nature consequent on the enactment of this Act or any
Act that amends this Act.
(2)
Any such provision may, if the regulations so
provide, take effect from the date of assent to the Act concerned or a later
date.
(3)
To the extent to which any such provision takes
effect from a date that is earlier than the date of its publication on the NSW
legislation website, the provision does not operate so as:
(a)
to affect, in a manner prejudicial to any person
(other than the State or an authority of the State), the rights of that person
existing before the date of its publication, or
(b)
to impose liabilities on any person (other than
the State or an authority of the State) in respect of anything done or omitted
to be done before the date of its publication.
(4)
To avoid doubt, a regulation made for the
purposes of this clause may exclude or otherwise modify the operation of any
provision of this Schedule as well as any other provision of this
Act.
(5)
Without limiting subclause (4), a regulation made
for the purposes of this clause may make separate savings and transitional
provisions or amend this Schedule to consolidate the savings and transitional
provisions.
Schedule 2Amendment of
legislation
2.1Bail
Act 2013 No 26
Section 4
Definitions
Insert “or the Terrorism (High Risk Offenders) Act
2017” after “Crimes (High Risk
Offenders) Act 2006” in the definition of supervision order in section 4
(1).
2.2Births, Deaths and Marriages Registration Act
1995 No 62
Section 25F
Definitions
Insert “or the Terrorism (High Risk Offenders) Act
2017” after “Crimes (High Risk
Offenders) Act 2006” in paragraph (a) of the
definition of supervision order in section
25F.
2.3Child
Protection (Offenders Prohibition Orders) Act 2004 No
46
Section 16B Commissioner of
Police may apply for orders
Insert “or the Terrorism (High Risk Offenders) Act
2017” after “Crimes (High Risk
Offenders) Act 2006” in section 16B (b)
(i).
2.4Child
Protection (Offenders Registration) Act 2000 No
42
Section 15 Suspension and
extension of reporting obligations
Insert “or the Terrorism (High Risk Offenders) Act
2017” after “Crimes (High Risk
Offenders) Act 2006” in section 15 (1)
(d).
2.5Child Protection (Offenders Registration) Regulation
2015
Clause 4 Definition of
“supervising authority”
Insert “or the Terrorism (High Risk Offenders) Act
2017” after “Crimes (High Risk
Offenders) Act 2006” in clause 4 (b)
(v).
2.6Crimes
(Administration of Sentences) Act 1999 No
93
[1]Section 3
Interpretation
Insert in alphabetical order in section 3
(1):
Commonwealth Criminal Code means the
Criminal Code set out in the Schedule to
the Criminal Code Act 1995 of the
Commonwealth.
Commonwealth post sentence terrorism
inmate means an inmate of a kind referred to in section 4
(1) (c3).
NSW
offence means an offence against a law of the
State.
NSW post
sentence inmate means:
(a)
an inmate of a kind referred to in section 4 (1)
(c1), or
(b)
an inmate of a kind referred to in section 4 (1)
(c2).
[2]Section 3 (1), definition of
“serious offender”
Insert after paragraph (e) of the
definition:
(e1)
a Commonwealth post sentence terrorism inmate,
or
(e2)
a NSW post sentence inmate,
or
[3]Section 4 Application of
Part
Insert after section 4 (1) (c1):
(c2)
any person the subject of a warrant under section
49 of the Terrorism (High Risk Offenders) Act
2017 by which the Supreme Court has committed the person
to a correctional centre pursuant to a continuing detention order, interim
detention order or emergency detention order under that Act,
and
(c3)
any person the subject of a continuing detention
order or interim detention order in force under Division 105A of Part 5.3 of
the Commonwealth Criminal Code who, under an arrangement with the State under
section 105A.21 of that Code, is detained in a correctional centre,
and
[4]Section 79
Regulations
Insert at the end of the section:
(2)
Without limiting subsection (1), the regulations
may make provision for or with respect to the treatment, accommodation and
detention of Commonwealth post sentence terrorism inmates and NSW post
sentence inmates.
[5]Section 126 Eligibility for
release on parole
Omit section 126 (4). Insert instead:
(4)
An offender is not eligible for release on parole
for a NSW offence if the offender is:
(a)
a Commonwealth post sentence terrorism inmate,
or
(b)
a NSW post sentence
inmate.
[6]Section 135 General duty of
Parole Authority relating to release of offenders (as substituted by the
Parole Legislation Amendment Act 2017
and then amended by the Crimes (High Risk Offenders) Amendment
Act 2017)
Omit section 135 (3) (i). Insert instead:
(i)
that an application that has been made (but not
determined) in respect of the offender:
(i)
for an extended supervision order or continuing
detention order under the Crimes (High Risk Offenders) Act
2006 or the Terrorism (High
Risk Offenders) Act 2017, or
(ii)
for a continuing detention order under Division
105A of Part 5.3 of the Commonwealth Criminal Code,
[7]Section 135 (7) (as
substituted by the Parole Legislation Amendment Act
2017 and then amended by the Crimes
(High Risk Offenders) Amendment Act
2017)
Omit the subsection. Insert instead:
(7)
The Parole Authority (and the Review Council when
giving advice for the purposes of subsection (5)) must not have regard to the
fact that either of the following may be made in respect of the
offender:
(a)
an application for an extended supervision order
or continuing detention order under the Crimes (High Risk
Offenders) Act 2006 or the Terrorism (High
Risk Offenders) Act 2017,
(b)
an application for a continuing detention order
under Division 105A of Part 5.3 of the Commonwealth Criminal
Code.
[8]Section 160A Relationship of
parole orders to high risk offender orders
Omit section 160A (1). Insert instead:
(1)
An offender’s obligations under a parole
order made in respect of a sentence for a NSW offence are suspended while the
offender is subject to:
(a)
an extended supervision order, an interim
supervision order, an interim detention order or an emergency detention order
under the Crimes (High Risk Offenders) Act
2006 or the Terrorism (High
Risk Offenders) Act 2017, or
(b)
an interim detention order under Division 105A of
Part 5.3 of the Commonwealth Criminal Code.
[9]Section 160A
(3)
Omit the subsection. Insert instead:
(3)
A parole order made in respect of a sentence for
a NSW offence to which an offender is subject is revoked if:
(a)
a continuing detention order is made against the
offender under the Crimes (High Risk Offenders) Act
2006 or the Terrorism (High
Risk Offenders) Act 2017, or
(b)
a continuing detention order is made against the
offender under Division 105A of Part 5.3 of the Commonwealth Criminal
Code.
[10]Section 197 Functions of
Review Council
Insert after section 197 (2):
(3)
In this section:
serious
offender includes a high risk offender within the meaning of
section 271A.
[11]Section 235G Functions of
Departmental compliance and monitoring officers
Insert “or the Terrorism (High Risk Offenders) Act
2017” after “Crimes (High Risk
Offenders) Act 2006” wherever occurring in section
235G (2) (b) and (6) (e).
[12]Section 236M Accommodation of
offenders in residential facilities
Insert “or the Terrorism (High Risk Offenders) Act
2017” after “Crimes (High Risk
Offenders) Act 2006” in section 236M (5)
(c).
[13]Section 256 Victims Register
(as amended by the Crimes (High Risk Offenders) Amendment
Act 2017)
Insert at the end of section 256 (2) (b):
, and
(c)
the names of victims of convicted NSW terrorist
offenders or convicted NSW underlying terrorism offenders who have requested
that they be given notice of an application for an order under Part 2 or 3 in
respect of the offender concerned under the Terrorism (High
Risk Offenders) Act 2017.
[14]Section 256 (4) (as amended by
the Crimes (High Risk Offenders) Amendment Act
2017)
Omit “or the Crimes
(High Risk Offenders) Act 2006” wherever
occurring.
Insert instead “, the Crimes
(High Risk Offenders) Act 2006 or the Terrorism (High Risk Offenders) Act
2017”.
[15]Section 256 (4AA) (as inserted
by the Crimes (High Risk Offenders) Amendment
Act 2017)
Insert “or section 51 of the Terrorism (High Risk Offenders) Act
2017” after “Crimes (High Risk
Offenders) Act 2006”.
[16]Section 256 (5) (as
substituted by the Crimes (High Risk Offenders) Amendment
Act 2017)
Insert in alphabetical order:
convicted
NSW terrorist offender has the same meaning as in the
Terrorism (High Risk Offenders) Act
2017.
convicted
NSW underlying terrorism offender has the same meaning as in
the Terrorism (High Risk Offenders) Act
2017.
[17]Section 256 (5) (as
substituted by the Crimes (High Risk Offenders) Amendment
Act 2017)
Insert after paragraph (c) of the definition of
victim:
(c1)
in relation to a convicted NSW terrorist offender
or convicted NSW underlying terrorism offender—a victim of an indictable
offence committed by the offender that has resulted in the offender being a
convicted NSW terrorist offender or convicted NSW underlying terrorism
offender for the purposes of the Terrorism (High
Risk Offenders) Act 2017,
or
[18]Section 256 (5) (as
substituted by the Crimes (High Risk Offenders) Amendment
Act 2017)
Omit “or (c)” from paragraph (d) of
the definition of victim. Insert instead “, (c)
or (c1)”.
[19]Section
271A
Omit the section. Insert instead:
271ARegulations relating to high
risk offenders
(1)
The regulations may provide for the preparation
and implementation of plans of management in respect of persons who are high
risk offenders, and the provision of services and programs in respect of those
persons, by Corrective Services NSW.
(2)
The regulations may confer functions on the
Review Council in respect of high risk offenders.
(3)
A person is a high risk
offender if:
(a)
the person is the subject of an extended
supervision order, interim supervision order, continuing detention order,
interim detention order or emergency detention order under the Crimes (High Risk Offenders) Act 2006,
or
(b)
the person is the subject of an extended
supervision order, interim supervision order, continuing detention order,
interim detention order or emergency detention order under the Terrorism (High Risk Offenders) Act
2017, or
(c)
the person is a Commonwealth post sentence
terrorism inmate.
2.7Crimes (Administration of Sentences) Regulation
2014
[1]Clause 3
Interpretation
Omit the definition of high risk
violent offender from clause 3 (1). Insert instead:
high risk
offender has the same meaning as it has in section 271A of
the Act.
[2]Clause 3 (1), definition of
“restricted associate”
Insert “or the Terrorism (High Risk Offenders) Act
2017” after “Crimes (High Risk
Offenders) Act 2006”.
[3]Clause 3 (1), definition of
“restricted associate”
Insert “See also sections 26 and 47 of the
Terrorism (High Risk Offenders) Act
2017.” after “suspended.” in the note to
the definition.
[4]Clause 20 Placement of
inmates
Insert “or the Terrorism (High Risk Offenders) Act
2017” after “Crimes (High Risk
Offenders) Act 2006” in clause 20 (1)
(g).
[5]Clause 31 Case plans for high
risk offenders
Omit “violent” wherever
occurring.
[6]Clause 33 Separation of
different classes of inmates
Insert after clause 33 (1) (c):
(d)
Commonwealth post sentence terrorism
inmate,
(e)
NSW post sentence
inmate.
[7]Clause 62 High risk
offenders
Omit “violent” wherever
occurring.
2.8Crimes
(Appeal and Review) Act 2001 No 120
[1]Section 96 Duty of police
officers and other officers to retain certain biological material
evidence
Insert “or the Terrorism (High Risk Offenders) Act
2017” after “Crimes (High Risk
Offenders) Act 2006” in section 96 (3)
(e).
[2]Section 97 Information about
and testing of retained biological material
Insert “or the Terrorism (High Risk Offenders) Act
2017” after “Crimes (High Risk
Offenders) Act 2006” in section 97 (5)
(c).
2.9Crimes
(High Risk Offenders) Act 2006 No 7
Section 24AC Functions of
Assessment Committee
Insert after section 24AC (g):
(g1)
to exercise the functions that are conferred or
imposed on the Assessment Committee by or under the Terrorism (High Risk Offenders) Act
2017,
2.10Crimes
(Sentencing Procedure) Act 1999 No
92
[1]Section 24A Mandatory
requirements for supervision and other prohibitions to be disregarded in
sentencing
Insert at the end of section 24A (1) (d):
, or
(e)
has or may become the subject of an order under
the Terrorism (High Risk Offenders) Act
2017.
[2]Section 58 Limitation on
consecutive sentences imposed by Local Court
Insert after section 58 (3):
(3A)
In addition, this section does not apply if the
new sentence relates to an offence against the regulations under the Crimes (Administration of Sentences) Act
1999) involving:
(a)
introducing or supplying (or attempting to
introduce or supply) a drug, alcohol or other substance prohibited by those
regulations into a place of detention, or
(b)
introducing or supplying (or attempting to
introduce or supply) syringes into a place of detention,
or
(c)
possessing an offensive weapon or instrument
within the meaning of the Crimes Act 1900,
or
(d)
possessing a mobile phone, a mobile phone SIM
card or mobile phone charger (or any part of
these).
2.11Criminal Procedure Act 1986 No
209
Schedule 1 Indictable offences
triable summarily
Insert after clause 10G in Part 6 of Table
2:
10HTerrorism (High Risk Offenders) Act
2017
An offence under section 30 or 60 (7) or (8) of
the Terrorism (High Risk Offenders) Act
2017.
2.12Government Information (Public Access) Act 2009
No 52
Schedule 2 Excluded
information of particular agencies
Insert at the end of clause 4:
An agency exercising functions in relation to the
provision of information to the Australian Security Intelligence
Organisation—functions relating to the handling of requests for
information from, or the provision of information to, the Australian Security
Intelligence Organisation.
2.13Jury
Act 1977 No 18
Schedule 1 Persons excluded
from jury service
Insert “or the Terrorism (High Risk Offenders) Act
2017” after “Crimes (High Risk
Offenders) Act 2006” in clause 4 (1)
(c).
2.14Privacy and Personal Information Protection Act
1998 No 133
Section
23A
Insert after section 23:
23AExemptions relating to
ASIO
(1)
A public sector agency is not required to comply
with section 13 or 14 if compliance would reveal to the public that ASIO had
requested, or been provided with, information about a
person.
(2)
A public sector agency is not required to comply
with section 18 if:
(a)
the disclosure of the information concerned has
been requested by the Director-General of ASIO for a purpose connected with
the exercise of ASIO’s functions under the Australian Security
Intelligence Organisation Act 1979 of the Commonwealth,
and
(b)
the information is disclosed to an officer or
employee of ASIO who is authorised in writing by the Director-General to
receive the information, and
(c)
the authorised officer or employee certifies in
writing that the information sought is reasonably necessary for ASIO to
exercise its functions under the Australian Security Intelligence
Organisation Act 1979 of the
Commonwealth.
(3)
To avoid doubt, this section permits (but does
not require) a public sector agency to disclose any information requested by
the Director-General of ASIO.
(4)
The Minister may enter into arrangements with the
Director-General of ASIO concerning the provision of reports by the
Director-General to the Minister concerning requests for information from
public sector agencies made by the Director-General.
(5)
The regulations may make provision for or with
respect to the tabling of such reports (or parts of such reports) in
Parliament, including authorising the Minister to omit information in the
reports that is confidential.
(6)
In this section:
ASIO means the Australian Security
Intelligence Organisation continued in existence by the Australian Security
Intelligence Organisation Act 1979 of the
Commonwealth.
2.15Supreme Court Act 1970 No
52
Section 126 Application of
Part
Insert after section 126 (1) (e):
(e1)
proceedings under the Terrorism (High Risk Offenders) Act
2017, or
Historical
notes
Table of amending
instruments
Terrorism (High
Risk Offenders) Act 2017 No 68. Assented to 30.11.2017.
Date of commencement, except Sch 2 (other than Sch 2.10 [2], 2.12 and 2.14),
6.12.2017, sec 2 (1) and (2) and 2017 (678) LW 1.12.2017; date of commencement
of Sch 2 (other than Sch 2.10 [2], 2.12 and 2.14): not in
force.