(2) A preventative detention order, and a prohibited contact order, cannot be applied for, or made, after 7 December 2026.
Division 105A—Post‑sentence orders
Subdivision A—Object and definitions
105A.1 Object
The object of this Division is to protect the community from serious Part 5.3 or 5.3A offences by providing that terrorist offenders who pose an unacceptable risk of committing such offences are subject to:
(a) a continuing detention order; or
(b) an extended supervision order.
105A.2 Definitions
(1) In this Division:
Commonwealth law enforcement officer has the meaning given by Part 7.8.
continuing detention order means an order made under subsection 105A.7(1).
extended supervision order means an order made under subsection 105A.7A(1).
intelligence or security officer has the meaning given by Part 10.6.
interim detention order means an order made under subsection 105A.9(2).
interim post‑sentence order means an interim detention order or an interim supervision order.
interim supervision order means an order made under subsection 105A.9A(4).
post‑sentence order means a continuing detention order or an extended supervision order.
post‑sentence order decision means:
(a) a decision on an application for a post‑sentence order or an interim post‑sentence order; or
(b) a decision on an application to vary an extended supervision order or interim supervision order; or
(c) a decision in a review of a post‑sentence order to affirm, revoke or vary the order; or
(d) a decision made under section 105A.15A (when a terrorist offender is unable to engage a legal representative).
Note: See also subsection (2).
post‑sentence order proceeding means a proceeding under Subdivision C, CA, CB or D.
premises includes a place, an aircraft, a vehicle and a vessel.
prison includes any gaol, lock‑up or remand centre.
relevant expert means any of the following persons who is competent to assess the risk of a terrorist offender committing a serious Part 5.3 or 5.3A offence:
(a) a person who is:
(i) registered as a medical practitioner under a law of a State or Territory; and
(ii) a fellow of the Royal Australian and New Zealand College of Psychiatrists;
(b) any other person registered as a medical practitioner under a law of a State or Territory;
(c) a person registered as a psychologist under a law of a State or Territory;
serious Part 5.3 or 5.3A offence means an offence against this Part or Part 5.3A, the maximum penalty for which is 7 or more years of imprisonment.
terrorist offender:
(a) has the meaning given by subsection 105A.3(1); and
(b) includes a person who meets the conditions in paragraphs 105A.3(1)(a) and (c) and:
(i) paragraphs 105A.3A(4)(a) and (b); or
(ii) paragraphs 105A.3A(5)(a) to (e).
Note: This definition is affected by sections 105A.2A and 105A.18.
(2) To avoid doubt, a decision on an application to a Supreme Court of a State or Territory for a post‑sentence order or interim post‑sentence order is not made until the Court determines the application in accordance with section 105A.6A or subsection 105A.9(1B) or 105A.9A(3).
State terrorist acts etc.
(3) A reference in this Division to a terrorist act includes a reference to a state terrorist act.
(4) Section 100.4, to the extent it relates to this Division, does not apply in relation to a terrorist act that is a state terrorist act.
(5) A reference in this Division to a terrorist organisation includes a reference to a state sponsor of terrorism.
105A.2A Persons who have escaped from custody
For the purposes of this Division (except section 105A.4) if:
(a) a person is detained in custody for a reason (for example, because the person is serving a sentence of imprisonment, on remand or subject to a continuing detention order); and
(b) the person escapes from custody;
the person is taken to be detained in custody for that reason until the person is returned to custody.
Note: For the definition of detained in custody, see subsection 100.1(1).
Subdivision B—Post‑sentence orders
105A.3 Who a post‑sentence order may apply to and effect of post‑sentence orders
(1) A post‑sentence order may be made under section 105A.7 or 105A.7A in relation to a person (the terrorist offender) if:
(a) the person has been convicted of:
(i) an offence against Subdivision A of Division 72 (international terrorist activities using explosive or lethal devices); or
(ii) a serious Part 5.3 or 5.3A offence; or
(iii) an offence against Part 5.5 (foreign incursions and recruitment), except an offence against subsection 119.7(2) or (3) (publishing recruitment advertisements); or
(iv) an offence against the repealed Crimes (Foreign Incursions and Recruitment) Act 1978, except an offence against paragraph 9(1)(b) or (c) of that Act (publishing recruitment advertisements); and
(b) a subsection of section 105A.3A provides that the order may be made in relation to the person; and
(c) the person will be at least 18 years old when the sentence for the conviction referred to in paragraph (a) of this subsection ends.
Note: Before making the order, a Court must be satisfied of certain matters under section 105A.7 or 105A.7A.
Effect of continuing detention order
(2) The effect of a continuing detention order is to commit the person to detention in a prison for the period the order is in force.
Note 1: The period must not be more than 3 years (see subsection 105A.7(5)).
Note 2: See also:
(a) section 105A.18C (effect of detention on post‑sentence order); and
(b) subsection 105A.21(2) (arrangements with States and Territories); and
(c) section 105A.24 (effect of continuing detention orders on bail or parole laws).
Effect of an extended supervision order
(3) The effect of an extended supervision order is to impose on the person, for the period the order is in force, conditions contravention of which is an offence.
Note 1: The period must not be more than 3 years (see paragraph 105A.7A(4)(d)).
Note 2: See also section 105A.18C (effect of detention on post‑sentence order).
105A.3A Preconditions for post‑sentence orders
Post‑sentence orders—person imprisoned for paragraph 105A.3(1)(a) offence
(1) A post‑sentence order may be made in relation to a person if the person is detained in custody in a prison serving a sentence of imprisonment for an offence referred to in paragraph 105A.3(1)(a).
Post‑sentence orders—continuing detention order in force
(2) A post‑sentence order may be made in relation to a person if a continuing detention order or interim detention order is in force in relation to the person.
Post‑sentence orders—person imprisoned for other offences
(3) A post‑sentence order may be made in relation to a person if:
(a) the person is detained in custody in a prison serving a sentence of imprisonment for an offence other than an offence referred to in paragraph 105A.3(1)(a); and
(b) either:
(i) the person has been continuously detained in custody in a prison since being convicted of the offence referred to in paragraph 105A.3(1)(a); or
(ii) the person has been continuously detained in custody in a prison since a continuing detention order or interim detention order was in force in relation to the person.
Note: For the definition of detained in custody in a prison, see subsection 100.1(1).
(4) A post‑sentence order may be made in relation to a person if:
(a) the person is detained in custody in a prison serving a sentence of imprisonment for an offence against section 105A.18A or subsection 105A.18B(1) (offences relating to extended supervision orders and interim supervision orders); and
(b) the person was charged with the offence before the later of:
(i) the relevant extended supervision order or interim supervision order ceasing to be in force; and
(ii) the end of 6 months after the conduct constituting the offence; and
(c) the Court making the post‑sentence order is satisfied, as a result of the offence referred to in paragraph (a), that the person poses an unacceptable risk of committing a serious Part 5.3 or 5.3A offence.
(5) A post‑sentence order may be made in relation to a person if:
(a) the person served a sentence of imprisonment for an offence referred to in paragraph 105A.3(1)(a); and
(b) before the person was released from custody in a prison:
(i) the AFP Minister’s consent to a request for an interim control order was sought under section 104.2; or
(ii) a request for an interim control order was made under section 104.6; and
(c) the interim control order was made as a result of the request; and
(d) the person is detained in custody in a prison serving a sentence of imprisonment for an offence against section 104.27 or subsection 104.27A(1) (offences relating to control orders) in relation to:
(i) the interim control order; or
(ii) the control order that resulted from confirming the interim control order; and
(e) the person was charged with the offence referred to in paragraph (d) before the later of:
(i) the order referred to in that paragraph ceased to be in force; and
(ii) the end of 6 months after the conduct constituting the offence; and
(f) the Court making the post‑sentence order is satisfied, as a result of the offence referred to in paragraph (d), that the person poses an unacceptable risk of committing a serious Part 5.3 or 5.3A offence.
Supervision orders—supervision order in force
(6) An extended supervision order or interim supervision order may be made in relation to a person if an extended supervision order or interim supervision order is in force in relation to the person.
Supervision orders—person imprisoned for other offences
(7) An extended supervision order or interim supervision order may be made in relation to a person if:
(a) the person is detained in custody in a prison serving a sentence of imprisonment for an offence other than the offence referred to in paragraph 105A.3(1)(a); and
(b) at the beginning of the person’s detention in custody in a prison, an extended supervision order or interim supervision order was in force in relation to the person.
Note: Paragraph (a)—an offence against section 105A.18A or subsection 105A.18B(1) (relating to an extended supervision order or interim supervision order) is an example of an offence other than the offence referred to in paragraph 105A.3(1)(a).
Supervision orders—control orders requested before commencement
(8) An extended supervision order or interim supervision order may be made in relation to a person if:
(a) the person served a sentence of imprisonment for an offence referred to in paragraph 105A.3(1)(a); and
(b) before the person was released from custody in a prison, and before the commencement of this subsection:
(i) the AFP Minister’s consent to a request for an interim control order was sought under section 104.2; or
(ii) a request for an interim control order was made under section 104.6; and
(c) either:
(i) the interim control order is in force; or
(ii) the interim control order was confirmed and the confirmed control order is in force.
Interpretation
(9) To avoid doubt, subsection (3) applies:
(a) whether the offence for which the person is serving the sentence of imprisonment is an offence against a law of the Commonwealth, a State or a Territory; and
(b) whether the sentence served for the offence referred to in paragraph 105A.3(1)(a) was served concurrently or cumulatively, or both, with:
(i) the sentence referred to in paragraph (3)(a) of this section; or
(ii) any of the other sentences served by the person since being convicted of the offence referred to in paragraph 105A.3(1)(a) (the other sentences); and
(c) whether the sentence referred to in paragraph (3)(a) of this section or the other sentences were imposed before or after, or at the same time as, the sentence for the offence referred to in paragraph 105A.3(1)(a); and
(d) whether or not the person has been continuously serving a sentence of imprisonment for an offence since being convicted of the offence referred to in paragraph 105A.3(1)(a).
(10) To avoid doubt, subsection (7) applies whether the offence for which the person is serving the sentence of imprisonment is an offence against a law of the Commonwealth, a State or a Territory.
105A.4 Treatment of a terrorist offender in a prison under a continuing detention order
(1) A terrorist offender who is detained in custody in a prison under a continuing detention order must be treated in a way that is appropriate to his or her status as a person who is not serving a sentence of imprisonment, subject to any reasonable requirements necessary to maintain:
(a) the management, security or good order of the prison; and
(b) the safe custody or welfare of the offender or any prisoners; and
(c) the safety and protection of the community.
(2) The offender must not be accommodated or detained in the same area or unit of the prison as persons who are in prison for the purpose of serving sentences of imprisonment unless:
(a) it is reasonably necessary for the purposes of rehabilitation, treatment, work, education, general socialisation or other group activities; or
(b) it is necessary for the security or good order of the prison or the safe custody or welfare of the offender or prisoners; or
(c) it is necessary for the safety and protection of the community; or
(d) the offender elects to be so accommodated or detained.
(3) This section does not apply if the offender is serving a sentence of imprisonment.
Subdivision C—Making post‑sentence orders
105A.5 Applying for a post‑sentence order
(1) The AFP Minister, or a legal representative of the AFP Minister, (the applicant) may apply to a Supreme Court of a State or Territory for either of the following:
(a) a continuing detention order in relation to a terrorist offender;
(b) an extended supervision order in relation to a terrorist offender.
Note: The court may make an extended supervision order under section 105A.7A even if a continuing detention order is applied for.
(2) However, the application may not be made more than 12 months before the end of:
(a) a sentence of imprisonment referred to in subsection 105A.3A(1) or paragraph 105A.3A(3)(a), (4)(a), (5)(d) or (7)(a); or
(b) if a post‑sentence order is in force in relation to the offender—the period for which the order is in force; or
(c) if subsection 105A.3A(8) applies in relation to the offender—the period the interim control order referred to in subparagraph 105A.3A(8)(c)(i) or confirmed control order referred to in subparagraph 105A.3A(8)(c)(ii) is in force.
(2AA) To avoid doubt, if both paragraphs (2)(a) and (b) apply in relation to a terrorist offender, the application may be made in accordance with either paragraph (even though the other paragraph may prevent an application from being made in relation to the offender).
(2A) The AFP Minister must ensure that reasonable inquiries are made to ascertain any facts known to any Commonwealth law enforcement officer or intelligence or security officer that would reasonably be regarded as supporting a finding that:
(a) if the application is for a continuing detention order—neither a continuing detention order nor an extended supervision order should be made in relation to the offender; or
(b) if the application is for an extended supervision order—the extended supervision order should not be made in relation to the offender.
Content of application
(3) The application must:
(a) include any report or other document that the applicant intends, at the time of the application, to rely on in relation to the application; and
(aa) include:
(i) a copy of any material in the possession of the applicant; and
(ii) a statement of any facts that the applicant is aware of;
that would reasonably be regarded as supporting a finding that the order or orders mentioned in paragraph (2A)(a) or (b) (as the case requires) should not be made, except any information, material or facts that are likely to be protected by public interest immunity (whether the claim for public interest immunity is to be made by the AFP Minister or any other person); and
(b) include information about the offender’s age; and
(c) request that the order be in force for a specified period; and
(d) if the application is for an extended supervision order—include the following material:
(i) a copy of the proposed conditions;
(ii) an explanation as to why each of the proposed conditions should be imposed on the offender;
(iii) if the AFP Minister is aware of any facts relating to why any of those conditions should not be imposed on the offender—a statement of those facts, except any facts that are likely to be protected by public interest immunity (whether the claim for public interest immunity is to be made by the AFP Minister or any other person);
(iv) if the offender is subject to an order under a law of a State or Territory that is equivalent to a post‑sentence order—a copy of that order; and
(e) if a report was obtained under section 105A.18D in relation to the offender—include a copy of the report.
Note 1: For paragraph (3)(c), the period must not be more than 3 years (see subsection 105A.7(5) and paragraph 105A.7A(4)(d)).
Note 2: Evidence may also be adduced later under section 105A.14.
Note 3: A copy of the application must be given to the terrorist offender under section 105A.14A.
105A.6 Appointment of and assessment by relevant expert
(1) If an application for a post‑sentence order is made under section 105A.5 to a Supreme Court of a State or Territory in relation to a terrorist offender, the Court must hold a preliminary hearing to determine whether to appoint one or more relevant experts.
(2) The hearing must be held within 28 days after a copy of the application is given to the offender under subsection 105A.14A(2).