Making an interim control order
104.4 Making an interim control order
The issuing court may make an order under this section in relation to the person, but only if:
the senior AFP member has requested it in accordance with section 104.3; and
the court has received and considered such further information (if any) as the court requires; and
the court is satisfied on the balance of probabilities:
that making the order would substantially assist in preventing a terrorist act; or
that the person has provided training to, received training from or participated in training with a listed terrorist organisation; or
that the person has engaged in a hostile activity in a foreign country; or
that the person has been convicted in Australia of an offence relating to terrorism, a terrorist organisation (within the meaning of subsection 102.1(1)) or a terrorist act (within the meaning of section 100.1); or
that the person has been convicted in a foreign country of an offence that is constituted by conduct that, if engaged in in Australia, would constitute a terrorism offence (within the meaning of subsection 3(1) of the Crimes Act 1914); or
that making the order would substantially assist in preventing the provision of support for or the facilitation of a terrorist act; or
that the person has provided support for or otherwise facilitated the engagement in a hostile activity in a foreign country; and
the court is satisfied on the balance of probabilities that:
each of the conditions; and
the combined effect of all of the conditions;
to be imposed on the person by the order in accordance with section 104.5A is reasonably necessary, and reasonably appropriate and adapted, for the purpose of:
protecting the public from a terrorist act; or
preventing the provision of support for or the facilitation of a terrorist act; or
preventing the provision of support for or the facilitation of the engagement in a hostile activity in a foreign country.
The issuing court may, in accordance with section 104.5B, specify conditions from which exemptions may be granted.
For the purposes of paragraph (1)(d), in determining whether:
each of the conditions; and
the combined effect of all of the conditions;
to be imposed on the person by the order is reasonably necessary, and reasonably appropriate and adapted, the court must take into account:
as a paramount consideration in all cases—the objects of this Division (see section 104.1); and
as a primary consideration in the case where the person is 14 to 17 years of age—the best interests of the person; and
as an additional consideration in all cases—the impact of:
each of those conditions; and
the combined effect of all of those conditions;
on the person’s circumstances (including the person’s financial and personal circumstances).
In determining what is in the best interests of a person for the purposes of paragraph (2)(d), the court must take into account the following:
the age, maturity, sex and background (including lifestyle, culture and traditions) of the person;
the physical and mental health of the person;
the benefit to the person of having a meaningful relationship with his or her family and friends;
the right of the person to receive an education;
the right of the person to practise his or her religion;
any other matter the court considers relevant.
In paragraphs (1)(c) and (d), a reference to a terrorist act includes:
a reference to a terrorist act that does not occur; and
a reference to a specific terrorist act; and
a reference to more than one terrorist act.
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