(1) A senior AFP member may request, by telephone, fax, email or other electronic means, an issuing court to make an interim control order in relation to a person if:
(a) the member considers it necessary to use such means because of urgent circumstances; and
(b) the member suspects the matters mentioned in subsection 104.2(2) on reasonable grounds.
(2) The AFP Minister’s consent under section 104.2 is not required before the request is made.
Note: However, if the AFP Minister’s consent is not obtained before the member makes the request, the AFP Minister’s consent must be obtained within 8 hours of the member making the request (see section 104.10).
(3) The issuing court may require communication by voice to the extent that is practicable in the circumstances.
(4) The request must include the following:
(a) all that is required under paragraphs 104.3(b) to (e) in respect of an ordinary request for an interim control order;
(b) an explanation as to why the making of the interim control order is urgent;
(c) if the AFP Minister’s consent has been obtained before making the request—a copy of the AFP Minister’s consent.
Note: The member might commit an offence if the request is false or misleading (see sections 137.1 and 137.2).
(5) The information and the explanation included in the request must be sworn or affirmed by the member, but do not have to be sworn or affirmed before the request is made.
Note: Subsection 104.7(5) requires the information and the explanation to be sworn or affirmed within 24 hours.
104.7 Making an urgent interim control order by electronic means
(1) Before making an order in response to a request under section 104.6, the issuing court must:
(a) consider the information and the explanation included in the request; and
(b) receive and consider such further information (if any) as the court requires.
(2) If the issuing court is satisfied that an order should be made urgently, the court may complete the same form of order that would be made under sections 104.4 and 104.5.
Procedure after urgent interim control order is made
(3) If the issuing court makes the order, the court must inform the senior AFP member, by telephone, fax, email or other electronic means, of:
(a) the terms of the order; and
(b) the day on which, and the time at which, it was completed.
(4) The member must then complete a form of order in terms substantially corresponding to those given by the issuing court, stating on the form:
(a) the name of the court; and
(b) the day on which, and the time at which, the order was completed.
(5) Within 24 hours of being informed under subsection (3), the member must give or transmit the following to the issuing court:
(a) the form of order completed by the member;
(b) if the information and the explanation included in the request were not already sworn or affirmed—that information and explanation duly sworn or affirmed;
(c) if the AFP Minister’s consent was not obtained before making the request—a copy of the AFP Minister’s consent.
(6) The issuing court must attach to the documents provided under subsection (5) the form of order the court has completed.
104.8 Requesting an urgent interim control order in person
(1) A senior AFP member may request, in person, an issuing court to make an interim control order in relation to a person without first obtaining the AFP Minister’s consent under section 104.2 if:
(a) the member considers it necessary to request the order without the consent because of urgent circumstances; and
(b) the member suspects the matters mentioned in subsection 104.2(2) on reasonable grounds.
Note: The AFP Minister’s consent must be obtained within 8 hours of making the request (see section 104.10).
(2) The request must include the following:
(a) all that is required under paragraphs 104.3(a) to (e) in respect of an ordinary request for an interim control order;
(b) an explanation that is sworn or affirmed as to why the making of the interim control order without first obtaining the AFP Minister’s consent is urgent.
Note: The member might commit an offence if the request is false or misleading (see sections 137.1 and 137.2).
104.9 Making an urgent interim control order in person
(1) Before making an order in response to a request under section 104.8, the issuing court must:
(a) consider the information and the explanation included in the request; and
(b) receive and consider such further information (if any) as the court requires.
(2) If the issuing court is satisfied that an order should be made urgently, the court may make the same order that would be made under sections 104.4 and 104.5.
(3) Within 24 hours of the order being made under subsection (2), the member must:
(a) give or transmit a copy of the order to the issuing court; and
(b) either:
(i) give or transmit a copy of the AFP Minister’s consent to request the order to the court; or
(ii) notify the court in writing that the AFP Minister’s consent was not obtained.
Note: Section 104.10 deals with the AFP Minister’s consent.
104.10 Obtaining the AFP Minister’s consent within 8 hours
(1) If the AFP Minister’s consent to request an interim control order was not first sought before making a request under section 104.6 or 104.8, the senior AFP member who made the request must, in accordance with subsection 104.2(3), seek that consent within 8 hours of making the request.
(2) In any case, if the AFP Minister:
(a) refuses his or her consent to request the order; or
(b) has not given his or her consent to request the order;
within 8 hours of the request being made, the order immediately ceases to be in force.
Note: However, the senior AFP member can seek the AFP Minister’s consent to request a new interim control order in relation to the person (see subsection 104.2(5)).
(3) If the order ceases to be in force under subsection (2), the senior AFP member must, as soon as practicable:
(a) notify the court that the order has ceased to be in force; and
(b) if the order has been served on the person in relation to whom it was made:
(i) annotate the order to indicate that it has ceased to be in force; and
(ii) cause the annotated order to be served personally on the person.
Note: For the personal service of documents on a person detained in custody, see section 104.28B.
104.11 Court to assume that exercise of power not authorised by urgent interim control order
If:
(a) it is material, in any proceedings, for a court to be satisfied that an interim control order was duly made under section 104.7; and
(b) the form of order completed by the relevant issuing court is not produced in evidence;
the first‑mentioned court is to assume, unless the contrary is proved, that the order was not duly made.
Subdivision D—Confirming an interim control order
104.12 Service, explanation and notification of an interim control order
Service and explanation of an interim control order
(1) As soon as practicable after an interim control order is made in relation to a person, and at least 48 hours before the day specified as mentioned in paragraph 104.5(1)(e), an AFP member:
(a) must serve the order personally on the person; and
(b) must inform the person of the following:
(i) the effect of the order;
(ii) the period for which the order (if confirmed) is in force;
(iii) the effect of sections 104.12A, 104.13, 104.14, 104.18 and 104.27 (and section 104.5C if appropriate);
(iiia) that the person has a right to obtain legal advice and legal representation;
(iv) that the person may have appeal and review rights in relation to the decision of the issuing court to make the order;
(v) the person’s right to attend court on the day specified for the purposes of paragraph 104.5(1)(e);
(vi) the right of the person or one or more representatives of the person, and (if relevant) the right of the Queensland public interest monitor, to adduce evidence or make submissions under subsection 104.14(1) if the order is confirmed;
(vii) that the person may have appeal and review rights in relation to any decision of the issuing court to confirm the order;
(viia) that the order may be varied by consent, in accordance with section 104.22;
(viii) the person’s right to apply under section 104.18 for an order revoking or varying the order if it is confirmed;
(ix) the right of the person or one or more representatives of the person, and (if relevant) the right of the Queensland public interest monitor, to adduce evidence or make submissions under subsection 104.19(3) or 104.23(4) in relation to an application to revoke or vary the order if it is confirmed; and
(c) must ensure that the person understands the information provided under paragraph (b) (taking into account the person’s age, language skills, mental capacity and any other relevant factor).
Note: For the personal service of documents on a person detained in custody, see section 104.28B.
(3) Paragraphs (1)(b) and (c) do not apply if the actions of the person in relation to whom the interim control order has been made make it impracticable for the AFP member to comply with those paragraphs.
(3A) Paragraphs (1)(b) and (c) do not apply if the person in relation to whom the interim control order has been made is detained in custody and it is impracticable for the AFP member to comply with those paragraphs.
(4) A failure to comply with paragraph (1)(c) does not make the control order ineffective to any extent.
If person is resident, or order made, in Queensland
(5) If:
(a) the person in relation to whom the interim control order is made is a resident of Queensland; or
(b) the issuing court that made the interim control order did so in Queensland;
an AFP member must give to the Queensland public interest monitor a copy of the order.
If person is 14 to 17
(6) As soon as practicable after an interim control order is made in relation to a person who is 14 to 17 years of age, and at least 48 hours before the day specified as mentioned in paragraph 104.5(1)(e), an AFP member must take reasonable steps to serve a copy of the order personally on at least one parent or guardian of the person.
104.12A Election to confirm control order
(1) At least 48 hours before the day specified in an interim control order as mentioned in paragraph 104.5(1)(e), the senior AFP member who requested the order must:
(a) elect whether to confirm the order on the specified day; and
(b) give a written notification to the issuing court that made the order of the member’s election.
(2) If the senior AFP member elects to confirm the order, an AFP member must:
(a) serve personally on the person in relation to whom the order is made:
(i) a copy of the notification; and
(ii) a copy of the documents mentioned in paragraphs 104.2(3)(aa) and 104.3(d); and
(iii) any other written details required to enable the person to understand and respond to the substance of the facts, matters and circumstances which will form the basis of the confirmation of the order; and
(b) if the person is a resident of Queensland, or the court made the order in Queensland—give the Queensland public interest monitor a copy of the documents mentioned in paragraph (a); and
(c) if the person is 14 to 17 years of age—take reasonable steps to serve a copy of the documents mentioned in paragraph (a) personally on at least one parent or guardian of the person.
Note: For the personal service of documents on a person detained in custody, see section 104.28B.
(3) To avoid doubt, subsection (2) does not require any information to be served or given if disclosure of that information is likely:
(a) to prejudice national security (within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004); or
(b) to be protected by public interest immunity; or
(c) to put at risk ongoing operations by law enforcement agencies or intelligence agencies; or
(d) to put at risk the safety of the community, law enforcement officers or intelligence officers.
The fact that information of a kind mentioned in this subsection is not required to be disclosed does not imply that such information is required to be disclosed in other provisions of this Part that relate to the disclosure of information.
(4) If the senior AFP member elects not to confirm the order, and the order has already been served on the person, then:
(a) if the order is in force—the order immediately ceases to be in force; and
(b) an AFP member must:
(i) annotate a copy of the order to indicate that it has ceased to be in force or will not come into force (as the case requires); and
(ii) cause the annotated order and a copy of the notification to be served personally on the person; and
(iii) if the person is a resident of Queensland, or the court made the order in Queensland—give the Queensland public interest monitor a copy of the annotated order and the notification; and
(iv) if the person is 14 to 17 years of age—cause reasonable steps to be taken to serve a copy of the annotated order and the notification personally on at least one parent or guardian of the person.
Note: For the personal service of documents on a person detained in custody, see section 104.28B.
104.13 Lawyer may request a copy of an interim control order
(1) A lawyer of the person in relation to whom an interim control order is made may attend the place specified in the order as mentioned in paragraph 104.5(1)(g) in order to obtain a copy of the order.
(2) This section does not:
(a) require more than one person to give the lawyer a copy of the order; or
(b) entitle the lawyer to request, be given a copy of, or see, a document other than the order.
104.14 Confirming an interim control order
When this section applies
(1A) This section applies if:
(a) an interim control order is made in relation to a person; and
(b) an election is made under section 104.12A to confirm the order; and
(c) the issuing court is satisfied on the balance of probabilities that section 104.12 and subsection 104.12A(2) have been complied with in relation to the order.
Who may adduce evidence or make submissions
(1) On the day specified as mentioned in paragraph 104.5(1)(e), the following persons may adduce evidence (including by calling witnesses or producing material), or make submissions, to the issuing court in relation to the confirmation of the order:
(a) the senior AFP member who requested the interim control order;
(b) one or more other AFP members;
(c) the person in relation to whom the interim control order is made;
(d) one or more representatives of the person;
(e) if:
(i) the person is a resident of Queensland; or
(ii) the court made the interim control order in Queensland;
the Queensland public interest monitor.
(2) Subsection (1) does not otherwise limit the power of the court to control proceedings in relation to the confirmation of an interim control order.
(3) Subject to subsection (3A), before taking action under this section, the court must consider:
(a) the original request for the interim control order; and
(b) any evidence adduced, and any submissions made, under subsection (1) in respect of the order.
(3A) To avoid doubt, in proceedings under this section, the issuing court:
(a) must take judicial notice of the fact that the original request for the interim control order was made in particular terms; but
(b) may only take action on evidence adduced, and submissions made, under subsection (1) in relation to the confirmation of the order.
Note: The Evidence Act 1995 covers the admissibility of evidence adduced under subsection (1).
Failure of person or representative etc. to attend
(4) The court may confirm the order without variation if none of the following persons attend the court on the specified day:
(a) the person in relation to whom the order is made;
(b) a representative of the person;
(c) if the person is a resident of Queensland, or the court made the order in Queensland—the Queensland public interest monitor.
Attendance of person or representative etc.
(5) The court may take the action mentioned in subsection (6) or (7) if any of the following persons attend the court on the specified day:
(a) the person in relation to whom the order is made;
(b) a representative of the person;
(c) if the person is a resident of Queensland, or the court made the order in Queensland—the Queensland public interest monitor.
(6) The court may declare, in writing, the order to be void if the court is satisfied that, at the time of making the order, there were no grounds on which to make the order.
(7) Otherwise, the court may:
(a) revoke the order if, at the time of confirming the order, the court is not satisfied as mentioned in paragraph 104.4(1)(c); or
(b) confirm and vary the order by removing one or more conditions if, at the time of confirming the order, the court is satisfied as mentioned in paragraph 104.4(1)(c) but is not satisfied as mentioned in paragraph 104.4(1)(d); or
(c) confirm the order without variation if, at the time of confirming the order, the court is satisfied as mentioned in paragraphs 104.4(1)(c) and (d).
Note: If the court confirms the interim control order, the court must make a new order under section 104.16.
104.15 Effect of confirmation process on interim control orders
Void interim control orders
(1) If the court declares the interim control order to be void under section 104.14, the order is taken never to have been in force.
Revoked interim control orders
(2) If the court revokes the interim control order under section 104.14, the order ceases to be in force when the court revokes the order.
Confirming interim control orders that were in force
(3) If the court confirms the interim control order (with or without variation) under section 104.14 then (subject to subsection (4) of this section):
(a) the interim control order ceases to be in force; and