A Part 5.3 supervisory order is any one of the following orders made under Part 5.3 of the Criminal Code:
(a) an interim control order;
(b) a confirmed control order;
(c) an interim supervision order;
(d) an extended supervision order.
If a Part 5.3 supervisory order is in force in relation to a person, and the person has a prescribed connection with premises, a constable may enter and search the premises if:
(a) the person is the occupier of the premises and consents to the entry; or
(b) the entry is made under a monitoring warrant.
If a Part 5.3 supervisory order is in force in relation to a person, a constable may conduct an ordinary search or a frisk search of the person if:
(a) the person consents to the search; or
(b) the search is conducted under a monitoring warrant.
A search must be for any of the following purposes (most of which are called Part 5.3 objects):
(a) the protection of the public from a terrorist act;
(b) the prevention of the provision of support for, or the facilitation of, a terrorist act;
(c) the prevention of the provision of support for, or the facilitation of, the engagement in a hostile activity in a foreign country;
(d) the protection of the community from the unacceptable risk of a terrorist offender committing a serious Part 5.3 or 5.3A offence;
(e) determining whether the Part 5.3 supervisory order has been, or is being, complied with.
3ZZJB Definitions
In this Part:
confirmed control order has the same meaning as in Part 5.3 of the Criminal Code.
control order has the same meaning as in Part 5.3 of the Criminal Code.
damage, in relation to data, includes damage by erasure of data or addition of other data.
engage in a hostile activity has the same meaning as in Part 5.3 of the Criminal Code.
evidential material has the same meaning as in Part IAA.
extended supervision order has the meaning given by section 105A.2 of the Criminal Code.
foreign country, when used in the expression hostile activity in a foreign country, has the same meaning as in the Criminal Code.
frisk search has the same meaning as in Part IAA.
inspecting officer means a person appointed under subsection 3ZZUA(1).
interim control order has the same meaning as in Part 5.3 of the Criminal Code.
interim supervision order has the meaning given by section 105A.2 of the Criminal Code.
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monitoring powers:
(a) in relation to premises—has the meaning given by sections 3ZZKB, 3ZZKC and 3ZZKD; or
(b) in relation to a person—has the meaning given by section 3ZZLB.
monitoring warrant means a warrant under section 3ZZOA or 3ZZOB.
ordinary search has the same meaning as in Part IAA.
Part 5.3 object means:
(a) in relation to a control order—any of the following:
(i) the protection of the public from a terrorist act;
(ii) the prevention of the provision of support for, or the facilitation of, a terrorist act;
(iii) the prevention of the provision of support for, or the facilitation of, the engagement in a hostile activity in a foreign country; or
(b) in relation to an extended supervision order or interim supervision order—the protection of the community from the unacceptable risk of a terrorist offender committing a serious Part 5.3 or 5.3A offence.
Part 5.3 supervisory order means:
(a) a control order; or
(b) an extended supervision order or interim supervision order.
premises includes the following:
(a) a structure, building or conveyance;
(b) a place (whether or not enclosed or built on);
(c) a part of a thing referred to in paragraph (a) or (b).
prescribed connection with premises has the meaning given by section 3ZZJC.
recently used conveyance, in relation to a search of a person, means a conveyance that the person had operated or occupied at any time within 24 hours before the search commenced.
relevant data has the meaning given by subsection 3ZZKC(3).
seizable item has the same meaning as in Part IAA.
serious Part 5.3 or 5.3A offence has the meaning given by section 105A.2 of the Criminal Code.
staff member of the Australian Federal Police means a person referred to in paragraph (a) of the definition of law enforcement officer in subsection 3(1).
State or Territory agency: see section 3ZZUF.
State or Territory inspecting authority: see section 3ZZUF.
strip search has the same meaning as in Part IAA.
terrorist offender has the meaning given by section 105A.2 of the Criminal Code.
3ZZJC Prescribed connection with premises
For the purposes of this Part, a person has a prescribed connection with premises if:
(a) the person:
(i) is the legal or beneficial owner of the premises (whether alone or together with one or more other persons); or
(ii) has any other legal or equitable estate or interest in the premises; or
(b) the person occupies, or resides on, the premises; or
(c) the person has possession or control of the premises (whether alone or together with one or more other persons); or
(d) the person performs any of the duties of his or her employment on the premises; or
(e) the person carries on a business on the premises (whether alone or together with one or more other persons); or
(f) the person performs voluntary work on the premises; or
(g) both:
(i) the premises are used by a school, college, university or other educational institution; and
(ii) the person attends the premises in his or her capacity as a student at the school, college, university or other educational institution.
3ZZJD Privileges not abrogated
Self‑incrimination
(1) This Part (other than section 3ZZUE) does not affect the right of a person to refuse to answer a question, give information, or produce a document, on the ground that the answer to the question, the information, or the production of the document, might tend to incriminate him or her or make him or her liable to a penalty.
Legal professional privilege
(2) This Part (other than section 3ZZUE) does not affect the right of a person to refuse to answer a question, give information, or produce a document, on the ground that:
(a) the answer to the question or the information would be privileged from being given on the ground of legal professional privilege; or
(b) the document would be privileged from being produced on the ground of legal professional privilege.
Other legislation not affected
(3) The fact that this section is included in this Part does not imply that the privilege against self‑incrimination or legal professional privilege is abrogated in any other law of the Commonwealth.
3ZZJE Application of Part
(1) This Part is not intended to limit or exclude the operation of another law of the Commonwealth (including other provisions of this Act) relating to:
(a) the search of premises; or
(b) the searching of persons or conveyances; or
(c) the seizure of things; or
(d) the requesting of information or documents from persons.
(2) To avoid any doubt, it is declared that even though another law of the Commonwealth (including other provisions of this Act) provides power to do one or more of the things referred to in subsection (1), a similar power conferred by this Part may be used despite the existence of the power under the other law.
Division 2—Powers of constables in relation to premises
Subdivision A—Monitoring powers
3ZZKA Entering premises by consent or under a warrant
(1) If:
(a) a Part 5.3 supervisory order is in force in relation to a person; and
(b) the person has a prescribed connection with particular premises;
a constable may enter the premises, and exercise the monitoring powers, for either of the following purposes:
(c) achieving a Part 5.3 object;
(d) determining whether the Part 5.3 supervisory order has been, or is being, complied with.
Note: The monitoring powers are set out in sections 3ZZKB, 3ZZKC and 3ZZKD.
(2) However, a constable is not authorised to enter the premises unless:
(a) the person:
(i) is the occupier of the premises; and
(ii) has consented to the entry; or
(b) the entry is made under a monitoring warrant.
Note: If entry to the premises is with the occupier’s consent, the constable must leave the premises if the consent ceases to have effect (see section 3ZZNA).
3ZZKB General monitoring powers
The following are the monitoring powers that a constable may exercise in relation to premises under section 3ZZKA:
(a) the power to search the premises and any thing on the premises;
(b) the power to search for and record fingerprints found at the premises;
(c) the power to take samples of things found at the premises;
(d) the power to examine or observe any activity conducted on the premises;
(e) the power to inspect, examine, take measurements of or conduct tests on any thing on the premises;
(f) the power to make any still or moving image or any recording of the premises or any thing on the premises;
(g) the power to inspect any document on the premises;
(h) the power to take extracts from, or make copies of, any such document;
(i) the power to take onto the premises such equipment and materials as the constable requires for the purpose of exercising powers in relation to the premises;
(j) the powers set out in subsections 3ZZKC(1) and (4) and 3ZZKD(2).
3ZZKC Operating electronic equipment
(1) The monitoring powers include the power to:
(a) operate electronic equipment on the premises; and
(b) use a disk, tape or other storage device that:
(i) is on the premises; and
(ii) can be used with the equipment or is associated with it.
(2) The monitoring powers include the powers mentioned in subsection (4) if relevant data is found in the exercise of the power under subsection (1).
(3) Relevant data means information relevant to:
(a) a Part 5.3 object; or
(b) determining whether the relevant Part 5.3 supervisory order has been, or is being, complied with.
(4) The powers are as follows:
(a) the power to operate electronic equipment on the premises to put the relevant data in documentary form and remove the documents so produced from the premises;
(b) the power to operate electronic equipment on the premises to transfer the relevant data to a disk, tape or other storage device that:
(i) is brought to the premises for the exercise of the power; or
(ii) is on the premises and the use of which for that purpose has been agreed in writing by the occupier of the premises;
and remove the disk, tape or other storage device from the premises.
(5) A constable may operate electronic equipment as mentioned in subsection (1) or (4) only if the constable believes on reasonable grounds that the operation of the equipment can be carried out without damage to the equipment.
Note: For compensation for damage to electronic equipment, see section 3ZZNF.
3ZZKD Securing electronic equipment to obtain expert assistance
Scope
(1) This section applies if a constable enters premises under a monitoring warrant.
Securing equipment
(2) The monitoring powers include the power to secure any electronic equipment that is on the premises if the constable suspects on reasonable grounds that:
(a) there is relevant data on the premises; and
(b) the relevant data may be accessible by operating the equipment; and
(c) expert assistance is required to operate the equipment; and
(d) the relevant data may be destroyed, altered or otherwise interfered with, if the constable does not take action under this subsection.
The equipment may be secured by locking it up, placing a guard or any other means.
(3) The constable must give notice to the occupier of the premises, or another person who apparently represents the occupier, of:
(a) the constable’s intention to secure the equipment; and
(b) the fact that the equipment may be secured for up to 24 hours.
Period equipment may be secured
(4) The equipment may be secured until the earlier of the following happens:
(a) the 24‑hour period ends;
(b) the equipment has been operated by the expert.
Note: For compensation for damage to electronic equipment, see section 3ZZNF.
Extensions
(5) The constable may apply to an issuing officer for an extension of the 24‑hour period if the constable believes on reasonable grounds that the equipment needs to be secured for longer than that period.
(6) Before making the application, the constable must give notice to the occupier of the premises, or another person who apparently represents the occupier, of his or her intention to apply for an extension. The occupier or other person is entitled to be heard in relation to that application.
(7) The 24‑hour period may be extended more than once.
Note: For the process by which an issuing officer may extend the period, see section 3ZZQA.
Subdivision B—Powers to ask questions and seek production of documents
3ZZKE Asking questions and seeking production of documents
Scope
(1) This section applies if a constable enters premises under section 3ZZKA.
Entry with consent
(2) If the entry is authorised because the occupier of the premises consented to the entry, the constable may ask the occupier to answer any questions, and produce any document, that is likely to assist in:
(a) achieving a Part 5.3 object; or
(b) determining whether the relevant Part 5.3 supervisory order has been, or is being, complied with.
Note 1: A person is not required to answer a question, or produce a document, in response to a request under this subsection.
Note 2: See also sections 3ZZRC and 3ZZRD.
Entry under a monitoring warrant
(3) If:
(a) the entry is authorised by a monitoring warrant; and
(b) the warrant authorises the constable to exercise powers under this subsection;
the constable may (subject to subsections (4) to (7)) require any person on the premises to answer any questions, and produce any document, that is likely to assist in:
(c) achieving a Part 5.3 object; or
(d) determining whether the relevant Part 5.3 supervisory order has been, or is being, complied with.
Note: See also sections 3ZZRC and 3ZZRD.
Legal professional privilege and privilege against self‑incrimination
(4) Before a constable requires a person to answer a question or produce a document under subsection (3), the constable must explain the effect of section 3ZZJD to the person.
(5) An answer to a question or a document produced under subsection (3) by a person is not admissible in evidence against him or her in criminal proceedings if a constable fails to explain the effect of section 3ZZJD to the person in accordance with subsection (4). The failure does not otherwise affect the use of the answer or document.
Note: For the uses that may be made of the answer or document, see sections 3ZZRC and 3ZZRD.
Exceptions to subsection (3)
(6) A person is not subject to a requirement under subsection (3) if:
(a) the person does not possess the information or document required; and
(b) the person has taken all reasonable steps available to the person to obtain the information or document required and has been unable to obtain it.
(7) A person is not subject to a requirement under subsection (3) to produce a document if the document is not at the premises.
Offence
(8) A person commits an offence if:
(a) the person is subject to a requirement under subsection (3); and
(b) the person engages in conduct; and
(c) the person’s conduct breaches the requirement.
Penalty for contravention of this subsection: 30 penalty units.
Subdivision C—Other powers
3ZZKF Other powers
Scope
(1) This section applies if:
(a) a constable enters premises under section 3ZZKA; and
(b) the entry is authorised by a monitoring warrant.
Powers
(2) The constable has the following powers in relation to the premises:
(a) the power to seize things found during the exercise of monitoring powers on the premises that the constable suspects on reasonable grounds to be:
(i) evidential material; or
(ii) evidential material (within the meaning of the Proceeds of Crime Act 2002); or
(iii) tainted property (within the meaning of that Act); or
(iv) seizable items;
(b) the power to conduct an ordinary search or a frisk search of a person at or near the premises if the constable suspects on reasonable grounds that the person has any evidential material or seizable items in his or her possession;
(c) the power to seize other things found while conducting an ordinary search or a frisk search of a person at or near the premises that the constable suspects on reasonable grounds to be:
(i) evidential material; or
(ii) evidential material (within the meaning of the Proceeds of Crime Act 2003); or
(iii) tainted property (within the meaning of that Act); or
(iv) seizable items.
3ZZKG Availability of assistance and use of force in executing a warrant
Scope
(1) This section applies if:
(a) a constable enters premises under section 3ZZKA; and
(b) the entry is authorised by a monitoring warrant.
Availability of assistance and use of force
(2) In:
(a) executing the warrant; or
(b) exercising the powers set out in section 3ZZKF in relation to the premises;
the constable may use such force against persons and things as is necessary and reasonable in the circumstances.
(3) In executing the warrant, the constable may obtain such assistance as is necessary and reasonable in the circumstances.
(4) If a person (other than a constable) has been authorised by the constable to assist in executing the warrant, the person may:
(a) enter the premises; and
(b) exercise the monitoring powers in relation to the premises; and
(c) in:
(i) entering the premises; or
(ii) exercising the monitoring powers;
use such force against things as is necessary and reasonable in the circumstances.
(5) If a person (other than a constable) has been authorised by the constable to assist in executing the warrant:
(a) the person may only exercise the monitoring powers set out in subsection 3ZZKD(2) if the constable forms the suspicion mentioned in that subsection; and