Criminal Code Act. Australia
Attorney-General’s consent to request an interim control order
(1) A senior AFP member must not request an interim control order in relation to a person without the Attorney-General’s written consent.
Note: However, in urgent circumstances, a senior AFP member may request an interim control order without first obtaining the Attorney-General’s consent (see Subdivision C).
(2) A senior AFP member may only seek the Attorney-General’s written consent to request an interim control order in relation to a person if the member:
(a) considers on reasonable grounds that the order in the terms to be requested would substantially assist in preventing a terrorist act; or
(b) suspects on reasonable grounds that the person has provided training to, or received training from, a listed terrorist organisation.
(3) In seeking the Attorney-General’s consent, the member must give the Attorney-General a draft request that includes:
(a) a draft of the interim control order to be requested; and
(b) the following:
(i) a statement of the facts relating to why the order should be made;
(ii) if the member is aware of any facts relating to why the order should not be made — a statement of those facts; and
(c) the following:
(i) an explanation as to why each of the obligations, prohibitions and restrictions should be imposed on the person;
(ii) if the member is aware of any facts relating to why any of those obligations, prohibitions or restrictions should not be imposed on the person — a statement of those facts; and
(d) the following:
(i) the outcomes and particulars of all previous requests for interim control orders (including the outcomes of the hearings to confirm the orders) in relation to the person;
(ii) the outcomes and particulars of all previous applications for variations of control orders made in relation to the person;
(iii) the outcomes of all previous applications for revocations of control orders made in relation to the person;
(iv) the outcomes and particulars of all previous applications for preventative detention orders in relation to the person;
(v) information (if any) that the member has about any periods for which the person has been detained under an order made under a corresponding State preventative detention law; and
(e) information (if any) that the member has about the person’s age; and
(f) a summary of the grounds on which the order should be made.
Note 1: An interim control order cannot be requested in relation to a person who is under 16 years of age (see section 104.28).
Note 2: The member might commit an offence if the draft request is false or misleading (see sections 137.1 and 137.2).
(3A) To avoid doubt, paragraph (3)(f) does not require any information to be included in the summary if disclosure of that information is likely to prejudice national security (within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004).
(4) The Attorney-General’s consent may be made subject to changes being made to the draft request (including the draft of the interim control order to be requested).
(5) To avoid doubt, a senior AFP member may seek the Attorney-General’s consent to request an interim control order in relation to a person, even if such a request has previously been made in relation to the person.
104.3 Requesting the court to make an interim control order
If the Attorney-General consents to the request under section 104.2, the senior AFP member may request the interim control order by giving an issuing court:
(a) a request:
(i) that is the same as the draft request, except for the changes (if any) required by the Attorney-General; and
(ii) the information in which is sworn or affirmed by the member; and
(b) a copy of the Attorney-General’s consent.
Note: The member might commit an offence if the request is false or misleading (see sections 137.1 and 137.2).
104.4 Making an interim control order
(1) The issuing court may make an order under this section in relation to the person, but only if:
(a) the senior AFP member has requested it in accordance with section 104.3; and
(b) the court has received and considered such further information (if any) as the court requires; and
(c) the court is satisfied on the balance of probabilities:
(i) that making the order would substantially assist in preventing a terrorist act; or
(ii) that the person has provided training to, or received training from, a listed terrorist organisation; and
(d) the court is satisfied on the balance of probabilities that each of the obligations, prohibitions and restrictions to be imposed on the person by the order is reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the public from a terrorist act.
(2) In determining whether each of the obligations, prohibitions and restrictions to be imposed on the person by the order is reasonably necessary, and reasonably appropriate and adapted, the court must take into account the impact of the obligation, prohibition or restriction on the person’s circumstances (including the person’s financial and personal circumstances).
(3) The court need not include in the order an obligation, prohibition or restriction that was sought by the senior AFP member if the court is not satisfied as mentioned in paragraph (1)(d) in respect of that obligation, prohibition or restriction.
104.5 Terms of an interim control order
(1) If the issuing court makes the interim control order, the order must:
(a) state that the court is satisfied of the matters mentioned in paragraphs 104.4(1)(c) and (d); and
(b) specify the name of the person to whom the order relates; and
(c) specify all of the obligations, prohibitions and restrictions mentioned in subsection (3) that are to be imposed on the person by the order; and
(d) state that the order does not begin to be in force until it is served personally on the person; and
(e) specify a day on which the person may attend the court for the court to:
(i) confirm (with or without variation) the interim control order; or
(ii) declare the interim control order to be void; or
(iii) revoke the interim control order; and
(f) specify the period during which the confirmed control order is to be in force, which must not end more than 12 months after the day on which the interim control order is made; and
(g) state that the person’s lawyer may attend a specified place in order to obtain a copy of the interim control order; and
(h) set out a summary of the grounds on which the order is made.
Note 1: An interim control order made in relation to a person must be served on the person at least 48 hours before the day specified as mentioned in paragraph (1)(e) (see section 104.12).
Note 2: A confirmed control order that is made in relation to a 16- to 18-year-old must not end more than 3 months after the day on which the interim control order is made (see section 104.28).
(1A) The day specified for the purposes of paragraph (1)(e) must be as soon as practicable, but at least 72 hours, after the order is made.