Terrorism (High Risk Offenders) Act 2017

This Act is the Terrorism (High Risk Offenders) Act 2017.

This Act commences on the relevant commencement day, except as provided by subsection (3).

The relevant commencement day is—

if the date of assent to this Act is before the day on which Schedule 1 to the Crimes (High Risk Offenders) Amendment Act 2017 commences—the day on which that Schedule commences, or

if the date of assent to this Act is on or after the day on which Schedule 1 to the Crimes (High Risk Offenders) Amendment Act 2017 commences—the date of assent.

Schedule 2 (other than Schedule 2.10 [2], 2.12 and 2.14) commences on a day or days to be appointed by proclamation.

The primary object of this Act is to provide for the extended supervision and continuing detention of certain offenders posing an unacceptable risk of committing serious terrorism offences so as to ensure the safety and protection of the community.

Another object of this Act is to encourage these offenders to undertake rehabilitation.

In this Act—

aggregate sentence of imprisonment has the same meaning as in the Crimes (Sentencing Procedure) Act 1999.

Australian jurisdiction means—

a State, or

a Territory, or

the Commonwealth.

business day means any day that is not a Saturday, Sunday or public holiday.

Commissioner of Corrective Services has the same meaning as Commissioner has in the Crimes (Administration of Sentences) Act 1999.

Commonwealth Criminal Code means the Criminal Code set out in the Schedule to the Criminal Code Act 1995 of the Commonwealth.

continuing detention order means an order for the detention of an eligible offender made under Division 3.2.

control order means a control order within the meaning of Part 5.3 of the Commonwealth Criminal Code.

convicted NSW terrorism activity offender—see section 10.

convicted NSW terrorist offender—see section 8.

convicted NSW underlying terrorism offender—see section 9.

correctional centre has the same meaning as in the Crimes (Administration of Sentences) Act 1999.

Corrective Services NSW has the same meaning as in the Crimes (Administration of Sentences) Act 1999.

corrective services officer means a correctional officer or community corrections officer within the meaning of the Crimes (Administration of Sentences) Act 1999.

cumulative sentence of imprisonment means 2 or more sentences of imprisonment in which each sentence of imprisonment is served concurrently or consecutively, or partly concurrently and partly consecutively, with 1 or more of the other sentences of imprisonment.

eligible offender—see section 7.

eligible offender in lawful custody—see section 5.

emergency detention order means an emergency order for the detention of an eligible offender made under Division 3.6.

enforcement officer means—

a corrective services officer, or

a police officer.

extended supervision order means an order for the supervision of an eligible offender made under Division 2.2.

function includes a power, authority or duty, and exercise a function includes perform a duty.

HRO Assessment Committee means the High Risk Offenders Assessment Committee established by section 24AB of the Crimes (High Risk Offenders) Act 2006.

interim detention order means an interim order for the detention of an eligible offender made under Division 3.5.

interim supervision order means an interim order for the supervision of an eligible offender made under Division 2.5.

Justice Health and Forensic Mental Health Network means the statutory health corporation of that name specified in Schedule 2 to the Health Services Act 1997.

NSW indictable offence means an offence against a law of the State for which proceedings may be taken on indictment (whether or not proceedings for the offence may also be taken otherwise than on indictment).

order under Part 2 or 3 means any of the following orders—

an extended supervision order,

an interim supervision order,

a continuing detention order,

an interim detention order,

an emergency detention order.

prescribed terrorism intelligence authority means any authority or other agency (or authority or other agency of a kind) of an Australian jurisdiction that is prescribed by the regulations.

qualified psychiatrist means a registered medical practitioner who is a fellow of the Royal Australian and New Zealand College of Psychiatrists.

relevant expert means a person who has expertise in relation to a body of knowledge of a kind prescribed by the regulations.

sentence of imprisonment for a NSW indictable offence—see section 6A.

sentencing court, in relation to an eligible offender or other person who has served or is serving a sentence of imprisonment for an offence, means—

the court by which the sentence was imposed, and

any court that heard an appeal in respect of that sentence.

serious terrorism offence means an offence against Part 5.3 of the Commonwealth Criminal Code for which the maximum penalty is 7 or more years of imprisonment.

serving a sentence of imprisonment—see section 6.

supporting documentation, in relation to proceedings under Part 2 or 3, means the documentation referred to in section 23 (3) or 37 (4), as the case requires.

terrorism activity means—

any statement or other conduct of any person or group of persons involving advocating support for engaging in any terrorist acts or violent extremism, or

any conduct or other activity of any person or group of persons involving planning or preparing for, or engaging in, any terrorist acts or violent extremism.

terrorism intelligence means information relating to actual or suspected terrorism activity (whether in the State or elsewhere) the disclosure of which could reasonably be expected—

to adversely affect the capacity of persons or bodies involved in the prevention of terrorist acts from preventing such acts or the capacity of intelligence agencies (for example, the Australian Security Intelligence Organisation) to carry out their functions, or

to prejudice criminal investigations or investigations by intelligence agencies, or

to enable the discovery of the existence or identity of a confidential source of information relevant to law enforcement or the functions of intelligence agencies, or

to endanger a person’s life or physical safety.

terrorist act has the same meaning as in Part 5.3 of the Commonwealth Criminal Code.

Note.

The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act.

Notes included in this Act do not form part of this Act.

In this Act, an eligible offender in lawful custody includes, where used in relation to an eligible offender who is subject to an extended supervision order or interim supervision order, the offender being in lawful custody during a period for which the offender is on remand for any offence.

In this Act, a person is serving a sentence of imprisonment for an offence if—

the person is serving a sentence of imprisonment for the offence by way of full-time detention, or

the person is on parole in respect of the offence.

In this Act, a sentence of imprisonment for a NSW indictable offence is a sentence of imprisonment in relation to which there is at least 1 offence that is a NSW indictable offence, including—

an aggregate sentence of imprisonment, and

a cumulative sentence of imprisonment.

In this Act, an eligible offender is a person who is—

18 years of age or older, and

serving, or is continuing to be supervised or detained under this Act after serving, a sentence of imprisonment for a NSW indictable offence.

In this Act, an eligible offender is a convicted NSW terrorist offender if—

the offender is serving (or is continuing to be supervised or detained under this Act after serving) a sentence of imprisonment for an offence against section 310J of the Crimes Act 1900, or

the offender has previously served a sentence of imprisonment for an offence against section 310J of the Crimes Act 1900 and is serving (or is continuing to be supervised or detained under this Act after serving) a sentence of imprisonment for a NSW indictable offence that is not an offence against section 310J of the Crimes Act 1900.

In this section—

sentence of imprisonment for an offence against section 310J of the Crimes Act 1900 extends to an aggregate sentence of imprisonment or a cumulative sentence of imprisonment in relation to which at least 1 of the offences is an offence against section 310J of the Crimes Act 1900.

In this Act, an eligible offender is a convicted NSW underlying terrorism offender if—

the offender is serving (or is continuing to be supervised or detained under this Act after serving) a sentence of imprisonment for a NSW indictable offence (the offender’s offence), and

the offender’s offence is a serious offence, and

the offender’s offence occurred in a terrorism context.

Each of the following kinds of offences (however described) is a serious offence—

an offence against the Firearms Act 1996,

an offence against the Weapons Prohibition Act 1998,

an offence that caused the death of, or grievous bodily harm or other serious physical harm to, a person,

an offence that caused serious damage to property,

an offence that endangered a person’s life (other than the life of the offender),

an offence that caused a serious risk to the health or safety of the public or a section of the public,

an offence that seriously interfered with, or seriously disrupted, or destroyed, an electronic system including, but not limited to, any of the following—

an information system,

a telecommunications system,

a financial system,

a system used for the delivery of essential government services,

a system used for, or by, an essential public utility,

a system used for, or by, a transport system,

an offence of attempting, assisting, aiding, abetting, counselling, procuring, soliciting, being an accessory to, encouraging, inciting or conspiring to commit any of the kinds of offences mentioned in paragraphs (a)–(g).

An eligible offender’s offence occurred in a terrorism context if—

the offender committed the offender’s offence with—

the intention of advancing a political, religious or ideological cause, and

the intention of coercing, or influencing by intimidation, the government of an Australian jurisdiction or foreign country (or of part of an Australian jurisdiction or foreign country) or of intimidating the public or a section of the public, or

the offender knew, or was reckless as to whether, the offender’s offence would materially assist any other person to commit—

an offence against section 310J of the Crimes Act 1900, or

a NSW indictable offence that is a serious offence committed by the other person with the intentions referred to in paragraph (a), or

a terrorism offence within the meaning of the Crimes Act 1914 of the Commonwealth.

In this section—

a reference to any person or property is a reference to any person or property wherever situated, within or outside the State (including within or outside Australia), and

a reference to the public includes a reference to the public of another Australian jurisdiction or of a foreign country.

In this Act, an eligible offender is a convicted NSW terrorism activity offender if the offender is serving (or is continuing to be supervised or detained under this Act after serving) a sentence of imprisonment for a NSW indictable offence (the offender’s offence) and any of the following apply in respect of the offender—

the offender has at any time been subject to a control order,

the offender has at any time been a member of a terrorist organisation,

the offender—

is making or has previously made any statement (or is carrying out or has previously carried out any activity) advocating support for any terrorist act or violent extremism, or

has or previously had any personal or business association or other affiliation with any person, group of persons or organisation that is or was advocating support for any terrorist act or violent extremism.

Without limiting subsection (1) (c)—

advocating support for a terrorist act or violent extremism includes (but is not limited to) any of the following—

making a pledge of loyalty to a person, group of persons or organisation, or an ideology, that supports terrorist acts or violent extremism,

using or displaying images or symbols associated with a person, group of persons or organisation, or an ideology, that supports terrorist acts or violent extremism,

making a threat of violence of a kind that is promoted by a person, group of persons or organisation, or an ideology, that supports terrorist acts or violent extremism, and

an association or other affiliation with a person, group of persons or organisation includes (but is not limited to) any of the following—

networking or communicating with the person, group of persons or organisation,

using social media sites or any other websites to communicate with the person, group of persons or organisation.

Subsection (1) (b) and (c) apply regardless of whether or not the eligible offender has been convicted of an offence for the conduct concerned (whether in Australia or elsewhere).

In this section—

terrorist organisation has the same meaning as it has in Division 102 of Part 5.3 of the Commonwealth Criminal Code.

In determining whether an eligible offender is a convicted NSW underlying terrorism offender or convicted NSW terrorism activity offender, the Supreme Court may take into account—

the views of the sentencing court at the time the offender was sentenced for the offender’s offence, and

the views of the sentencing court at the time a person other than the offender was sentenced for an offence if the person was a co-accused of the offender or was convicted of assisting, aiding, abetting, counselling, procuring, soliciting, being an accessory to, encouraging, inciting or conspiring to commit the offender’s offence, and

evidence adduced in the proceedings for the offender’s offence or in proceedings against another person for an offence referred to in paragraph (b), and

any relevant terrorism intelligence, and

the offender’s criminal history (including prior convictions and findings of guilt in respect of offences committed in the State or elsewhere), and any pattern of offending behaviour disclosed by that history, and

the results of any assessment prepared by a qualified psychiatrist, registered psychologist, registered medical practitioner or other relevant expert as to the offender’s history of behaviour (including any patterns in, or the progression of, that behaviour to date), and

any information concerning the offender that the Court considers relevant (including developmental or social factors and behaviour while in custody), and

any report prepared by Corrective Services NSW, the NSW Police Force or a prescribed terrorism intelligence authority concerning the offender and the offender’s associates and affiliations, and

information indicating that current or former associates of the offender have been or are involved in terrorism activities, and

any other information that the Court considers relevant.