Counter-Terrorism Acts (Designations and Control Orders) Amendment Act 2023

1: Title
This Act is the Counter-Terrorism Acts (Designations and Control Orders) Amendment Act 2023.
2: Commencement
1: This Act comes into force on the day after the date of Royal assent.
2: Section 13 Security Information in Proceedings Act 2022 section 2(1)﻿(a) or (b)
3: Sections 15 to 24 Security Information in Proceedings (Repeals and Amendments) Act 2022 section 2(1)﻿(a) or (b)
1: Amendments to Terrorism Suppression Act 2002
3: Principal Act
This Part amends the Terrorism Suppression Act 2002 2023-05-10 Terrorism Suppression Act 2002 excluding sections 12–24
4: Section 4 amended (Interpretation)
In section 4(1) imprisoned sections 35A to 35E Part 2 section 35G
5: Section 23 amended (Further provisions relating to final designation)
In section 23(h) section 34 or 35D
6: Section 30 amended (Information available to Prime Minister)
In section 30
a: replace or to revoke , revoke, or renew
b: replace or section 22 or section 34, , 22, 34, 35, or 35D
7: Section 35 amended (Designations under section 22 to expire after 3 years unless renewed by Prime Minister)
In section 35(1)﻿(a) section 34 or 35D
8: New sections 35A to 35G and cross-headings inserted
After section 35 Effect on final designation if entity imprisoned
35A: Effect on final designation if entity imprisoned
When sections 35B to 35F apply
1: Sections 35B to 35F
a: the subject of a designation made under section 22 as—
i: a terrorist entity; or
ii: an associated entity; and
b: imprisoned (as defined in section 35G When imprisonment starts does not matter
2: Sections 35B to 35F
a: the time when the designation takes effect:
b: the time when the last renewal (if any) of the designation takes effect.
35B: Certain revocation applications stopped
While the entity is imprisoned, no application for revocation of the designation can be made under section 34(1)﻿(a) or (b) on the ground specified in section 34(3)﻿(b).
35C: Duration of designation extended (3-year period until expiry paused)
1: While the entity is imprisoned, any incomplete 3-year period, or further 3-year period, under section 35, for expiry of the designation, does not run or end.
2: When the entity ceases to be imprisoned, that period, or further period, resumes, and the designation may expire (if it is not renewed under section 35).
35D: Periodic review whether designation no longer justified
1: The Prime Minister must, at least once every 3 years while the entity is imprisoned, review the designation and decide whether it is no longer justified.
2: The Prime Minister must revoke under this section a designation that they decide under this section is no longer justified ( see also
35E: Periodic review: when designation no longer justified
1: The Prime Minister may decide a designation is no longer justified under section 35D
2: Subsection (1)
35F: Periodic review: procedure
For a review under section 35D
a: must take reasonable steps to allow the following to make available relevant information:
i: the entity; and
ii: a third party with an interest in the designation that, in the Prime Minister’s opinion after having regard to section 34(2), is an interest apart from any interest in common with the public; and
b: must take into account any relevant information made available in response to those steps; and
c: may take into account any other relevant information, including classified security information ( see also
35G: Definition: when entity is imprisoned
Definition
1: For sections 35A to 35E imprisoned Prisoner under Corrections Act 2004
a: is in the legal custody under the Corrections Act 2004 of—
i: the chief executive (as defined in section 3(1) of that Act); or
ii: the Commissioner of Police; or Arrested and detained or sentenced for armed forces discipline
b: is arrested and detained under the Armed Forces Discipline Act 1971 pending release or trial; or
c: is a service detainee or a service prisoner (as those terms are defined in section 4 of the Prisoners' and Victims' Claims Act 2005). When entity may be in specified legal custody under Corrections Act 2004
2: Subsection (1)﻿(a)
a: is detained for the purposes of any remand pending or during trial or sentence in the District Court or High Court; or
b: is detained in a prison as a young person (aged 17 years), pending hearing in the Youth Court, and under an order made under section 238(1)﻿(f) of the Oranga Tamariki Act 1989; or
c: is serving a sentence of imprisonment (for example, is serving a sentence of imprisonment as a young person—
i: detained under that sentence in a prison or in a Police jail under section 34(1) or (2) of the Corrections Act 2004; and so
ii: not detained under that sentence in a residence under section 34A(1) of that Act); or
d: is detained under the Immigration Act 2009 (for example, pending deportation); or
e: is detained under the Extradition Act 1999 (for example, pending the surrender of the entity to the extradition country). Meaning of young person
3: In this section, young person Classified security information, and notification
9: Section 42 amended (Notification of revocation, expiry, or invalidity of designations)
In section 42(1) or section 35 , 35, or 35D
10: Section 59 amended (Discharge of order under section 55 on appeal)
In section 59(2) section 34 or 35D
11: Schedule 1AA amended
In Schedule 1AA
a: insert the Part set out in Part 1 of Schedule 1
b: make all necessary consequential amendments. Consequential amendment to Security Information in Proceedings Act 2022
12: Principal Act
Section 13 Security Information in Proceedings Act 2022 2023-11-28 Security Information in Proceedings Act 2022 if not brought into force ealier by OIC
13: Section 4 amended (Interpretation)
In section 4 security information SI 38 34 Consequential amendments to Security Information in Proceedings (Repeals and Amendments) Act 2022
14: Principal Act
Sections 15 to 24 Security Information in Proceedings (Repeals and Amendments) Act 2022 2023-11-28 Security Information in Proceedings (Repeals and Amendments) Act 2022 if not brought into force ealier by OIC
15: Section 71 amended (New section 29D inserted (Notification of decisions about expiry or revocation of designations))
1: In section 71 Expiry or revocation of designation
2: In section 71 or 29C , 29C, or 35D
3: In section 71 Decision to decline application for revocation of designation
4: In section 71 Decision under section 35D
4: If the Prime Minister decides that the result of a review under section 35D
5: If the Prime Minister relied on classified security information in deciding that the result of a review under section 35D
a: the Prime Minister relied on that kind of information; and
b: the entity may request that a summary of the classified security information be provided to them under section 31.
16: Section 73 replaced
Replace section 73
73: Section 30 amended (Information available to Prime Minister)
In section 30, replace 34, 35, 29B, 29C,
17: Section 74 amended (New sections 31 and 31A and cross-heading inserted)
1: In section 74 or 29D(3)﻿(b) or section 29D(3)﻿(b) or (5)﻿(b)
2: In section 74
b: to decline an application for revocation of a designation under section 29C; or
c: the result of a review under section 35D
3: In section 74
b: to decline an application for revocation of a designation under section 29C; or
c: the result of a review under section 35D
18: New section 76A inserted (New section 34 inserted (Proceedings involving classified security information))
After section 76
76A: New section 34 inserted (Proceedings involving classified security information)
After section 33, insert:
34: Proceedings involving classified security information
1: This section applies to any civil proceedings (including public law and judicial review proceedings) in a court relating to the administration or enforcement of this Act.
2: If the Crown proposes to present classified security information in proceedings, the Attorney-General must—
a: make an application to an authorised court under section 32
b: submit to the court the certification described in section 4A(1)﻿(b)
3: If the classified security information is also national security information, the Crown may submit with the application and certification referred to in subsection (2) section 41 section 36(3)
4: In this section,— 2022 Act Security Information in Proceedings Act 2022 authorised court national security information NSI certificate security information order section 4
19: New sections 78A to 78E inserted
After section 78
78A: Section 35B amended (Certain revocation applications stopped)
In section 35B section 34(1)﻿(a) or (b) on the ground specified in section 34(3)﻿(b) section 29C(1)﻿(a) or (b) on the ground specified in section 29C(3)﻿(b)
78B: Section 35C amended (Duration of designation extended (3-year period until expiry paused))
In section 35C(1) and (2) 35 29B
78C: Section 35D amended (Periodic review whether designation no longer justified)
In section 35D(2) 42 29D
78D: Section 35F amended (Periodic review: procedure)
In section 35F(a)﻿(ii) 34(2) 29C(2)
78E: Cross-heading below section 35G repealed
Repeal the cross-heading below section 35G
20: Section 79 replaced (Section 38 replaced (Procedure in proceedings involving classified security information))
Replace section 79
79: Section 38 repealed (Procedure in proceedings involving classified security information)
Repeal section 38.
21: Section 81 amended (Section 42 amended (Notification of revocation, expiry, or invalidity of designations))
1: In the heading to section 81 amended renumbered as section 35 and repositioned
2: Before section 81(1), insert:
1AAA: Renumber section 42 as section 35 and reposition it after section 34 section 76A
3: Replace section 81(2)
2: In section 42(1) expires or is revoked or is found to be or to have been invalid, under section 34, 35, or 35D is found to have been invalid
22: Section 81A inserted (Section 56 amended (Notice of application under section 55))
After section 81
81A: Section 56 amended (Notice of application under section 55)
In section 56(4), replace 38 34
23: Section 82 amended (Section 58 amended (Appeal against decision on application under section 55))
In section 82 section 38 section 34
24: Schedule 6 amended
1: In Schedule 6 relevant action decisions of the Prime Minister
2: In Schedule 6 relevant action
e: a decision of the Prime Minister that the result of a review under section 35D
3: In Schedule 6 section 38 proceedings section 34 proceedings section 34
4: In Schedule 6 38 34
5: In Schedule 6 Section 38 proceedings commenced before the commencement date, and Proceedings to which section 38 (as in force before the commencement date) applied, and that were
2: Amendments to Terrorism Suppression (Control Orders) Act 2019
25: Principal Act
This Part amends the Terrorism Suppression (Control Orders) Act 2019 2023-05-10 Terrorism Suppression (Control Orders) Act 2019
26: Section 5 amended (Interpretation)
1: In section 5 community-based sentence EM address EM requirement see also section 17A EM requirement for a residential requirement
a: submit to electronic monitoring of compliance with a residential requirement of the control order concerned; and
b: co-operate with, and comply with any lawful direction given by, Police; and
c: not tamper with or damage or do anything to interfere with the functioning of the electronic monitoring equipment; and
d: otherwise comply with their obligations under the EM requirement for the residential requirement ( see section 17A overturned section 28A(1) (6) section 28A(3) to (5) post-detention conditions relevant occupant
a: if it is a family residence, every person of or over the age of 16 years who ordinarily lives there; and
b: if it is any other residence, every person whom the Commissioner or the chief executive of the Department of Corrections identifies as being a relevant occupant for the purposes of section 16D and clause 3 of Schedule 3 residential requirement sentence of home detention
2: In section 5 relevant offender section 6(5) or (6)
27: Section 6 amended (Meaning of relevant person)
1: In section 6(1AA)﻿(b) subsection (5) or (6)
2: In section 6(5)﻿(a) the commencement date of the Counter-Terrorism Legislation Act 2021 5 October 2021 (which is the commencement date of the Counter-Terrorism Legislation Act 2021)
3: After section 6(5) Commission of terrorism-related New Zealand offence punished by sentence of home detention or community-based sentence
6: This subsection applies to a person who is 18 years old or older and—
a: who, on or after the commencement date of the Counter-Terrorism Acts (Designation and Control Orders) Amendment Act 2023, committed, and was convicted of, a terrorism-related New Zealand offence ( see
b: who was sentenced, on or after that commencement date, for that offence, to a sentence of home detention or a community-based sentence; and
c: whose last day as an offender who is subject to that sentence of home detention (including while subject to post-detention conditions), or that community-based sentence, is after that commencement date. Effect of appeal against conviction or sentence
7: Subsections (5) and (6) section 28A
a: the convicted person or a prosecutor has appealed against the conviction or sentence; and
b: the sentence is suspended, or ceases to run, because of the filing of a notice of appeal or application for leave to appeal.
28: Section 8A amended (Meaning of terrorism-related New Zealand offence)
1: Replace section 8A(b)﻿(ii)
ii: that involves a specified objectionable publication.
2: In section 8A
2: In this section, specified objectionable publication FVPC Act Publication deemed objectionable under section 3(2) of FVPC Act
a: the publication promotes or supports, or tends to promote or support, acts of torture or the infliction of extreme violence or extreme cruelty (as provided in section 3(2)﻿(f) of the FVPC Act): Publication determined objectionable under section 3(3) of FVPC Act
b: the extent and degree to which, and the manner in which, the publication describes, depicts, or otherwise deals with acts of torture, the infliction of serious physical harm, or acts of significant cruelty (as provided in section 3(3)﻿(a)﻿(i) of the FVPC Act):
c: the extent and degree to which, and the manner in which, the publication promotes or encourages acts of terrorism (as provided in section 3(3)﻿(d) of the FVPC Act).
29: Section 12 amended (Power to make)
In section 12(3)﻿(a) privacy) , and their ability to comply with any conditions of any sentence they are serving, order they are subject to, or relevant conditions imposed upon them
30: Section 14 amended (Application required)
In section 14(2)﻿(b) section 15(2)﻿(a) or (b) or 16A(2)
31: Section 16A amended (Application for interim control order in respect of relevant offender)
In section 16A(1)﻿(a)﻿(ii) section 6(5)﻿(c) or, as the case requires, on or before their last day as an offender who is subject to the sentence of home detention (including while subject to post-detention conditions), or the community-based sentence, mentioned in section 6(6)﻿(c)
32: Section 16B amended (Application for final control order in respect of relevant offender)
In section 16B(1)﻿(a)﻿(ii) and (c)﻿(ii) section 6(5)﻿(c) or, as the case requires, on or before their last day as an offender who is subject to the sentence of home detention (including while subject to post-detention conditions), or the community-based sentence, mentioned in section 6(6)﻿(c)
33: New sections 16C to 16E inserted
After section 16B
16C: Report on whether EM requirement practicable and appropriate
1: If the requirements of a control order sought are or include an EM requirement ( see
2: The report must address whether an EM requirement is practicable and appropriate, including—
a: whether the monitoring equipment will function adequately; and
b: if the report relates only or in part to an EM requirement for a residential requirement, complying with section 16D
3: The report may also address any of the following matters:
a: the relevant person’s circumstances, including their employment, training, and childcare commitments; and
b: any other matter that is or may be relevant to whether (and if so, on what terms, and any conditions) a control order should impose an EM requirement. 2000 No 38 s 30F
16D: EM address for EM requirement for residential requirement
1: In preparing a report under section 16C
a: whether the proposed EM address is appropriate for electronic monitoring of the relevant person, including whether there is any evidence of violence between—
i: the relevant person and any occupant of that address; and
ii: the relevant person and any person who may reasonably be expected to visit that address:
b: after following the steps set out in subsection (2)
2: Before ascertaining whether or not a relevant occupant consents, the Commissioner or the chief executive of the Department of Corrections must—
a: ensure that the occupant—
i: is aware of the nature of the circumstances that may lead to the relevant person becoming subject to an EM requirement for a residential requirement; and
ii: is aware of the nature of any past offending by the relevant person; and
iii: is aware of and understands the effects of an EM requirement for a residential requirement; and
b: inform the occupant that the information in paragraph (a)
c: inform the occupant that the information in paragraph (a) paragraph (b)
d: inform the occupant that consent to the relevant person remaining at the EM address with an EM requirement for a residential requirement can be withdrawn at any time and inform the occupant how they may withdraw their consent. 2000 No 38 s 30G
16E: Use of information obtained for report
1: The uses to which information obtained for the purpose of preparing a report under section 16C may be put are the following:
a: use in the determination of the application to which the report relates:
b: any use to which the relevant person has consented:
c: any other use that is or may be necessary for the purposes of this Act.
2: That information may not be used except in accordance with subsection (1) 2000 No 38 s 30H
34: Section 17 amended (Requirements that may be imposed)
1: In section 17(j) to remain at that address (except as authorised by or under section 18
2: Replace section 17(n)
n: require that the relevant person submits to electronic monitoring of compliance with the requirements of the control order concerned and complies with their other obligations under section 17A see also section 19(1)
3: After section 17(p)
q: require that the relevant person comply with any requirements that are not of a kind specified in paragraphs (a) to (p), that are specified in the order, and that are imposed under section 12(2)﻿(b) and (c) and (3) for (as the case requires)—
i: the main purposes stated in section 3(a) and (b); or
ii: 1 or both of the incidental purposes stated in section 3(c).
35: New section 17A inserted
After section 17
17A: Relevant person’s obligations under EM requirement
Obligations under any EM requirement
1: A relevant person who is subject to a control order with an EM requirement must—
a: submit to electronic monitoring of compliance with the requirements of the control order concerned ( see section 17(n)
b: co-operate with, and comply with any lawful direction given by, Police; and
c: not tamper with or damage or do anything to interfere with the functioning of the electronic monitoring equipment. Obligations under EM requirement for residential requirement
2: A relevant person who is subject to a control order with an EM requirement for a residential requirement must (as well as complying with their obligations under subsection (1)
a: not leave the EM address at any time except as authorised by or under section 18
b: remain in the area of the EM address that has been defined under clause 3 of Schedule 3 section 18
c: present themselves at the door of the EM address when required to do so by a constable. Breach
3: A breach by a relevant person of an obligation under subsection (1) or (2) see
36: Sections 18 and 19 replaced
Replace sections 18 19
18: Limits on residential requirement
Daily limit on residential requirement
1: No residential requirement can require the relevant person to remain at a specified address for more than 12 hours in any 24-hour period. Authorised absences: general
2: A residential requirement does not prevent the relevant person from leaving a specified address—
a: as authorised under subsection (3) or (5)
b: to seek urgent medical or dental treatment; or
c: to avoid or minimise a serious risk of death or injury to the relevant person or any other person; or
d: to surrender themselves to Police custody. Authorised absences: court-authorised absences
3: A court imposing a residential requirement can authorise the relevant person to be absent from a specified address.
4: In authorising a relevant person to be absent from the specified address, the court must specify—
a: the time or times during which the relevant person may be absent; and
b: the purpose or purposes for which the relevant person may be absent. Authorised absences: Police-authorised absences
5: In addition to absences authorised under subsection (3) Further provision if EM requirement for residential requirement
6: If the relevant person is, or is to be, also subject to an EM requirement for a residential requirement,—
a: a specified address under section 17(j) must be the same as the EM address:
b: references in subsections (1) to (5) clause 3 of Schedule 3 2000 No 38 s 30M
19: Limits on EM requirement
Limit on any EM requirement
1: An EM requirement requires ( see section 17(n)
a: to submit to electronic monitoring of compliance with the requirements of the control order concerned; and
b: to comply with their other obligations under section 17A
2: An EM requirement may be imposed by a control order only—
a: under section 12(2)﻿(b) or (c); and
b: for the relevant purposes mentioned in section 12(2)﻿(b) or (c).
3: The court must not impose an EM requirement if the court considers that a less restrictive requirement or combination of requirements would be sufficient to achieve—
a: the main purposes stated in section 3(a) and (b); and (if applicable)
b: 1 or both of the incidental purposes stated in section 3(c).
4: The court must not impose an EM requirement unless the court is satisfied on reasonable grounds that the relevant person has been made aware of and understands their obligations under the EM requirement ( see section 17A
5: In considering whether (and if so, on what terms, and any conditions) to impose an EM requirement, the court—
a: must consider the report referred to in section 16C
b: may have regard to any other relevant information. Limits on EM requirement for residential requirement
6: In imposing an EM requirement for a residential requirement, a court must specify the EM address ( see also 18(6)﻿(a)
7: The court must not impose an EM requirement for a residential requirement unless the court is satisfied on reasonable grounds ( see also section 16D
a: the proposed EM address is appropriate for the purpose of a control order with an EM requirement for a residential requirement:
b: it is practicable for the relevant person to remain at the proposed EM address:
c: every relevant occupant of the proposed EM address has consented to the relevant person remaining at the proposed EM address with an EM requirement for a residential requirement:
d: the consent of the relevant occupant has been obtained after the steps set out in section 16D(2) 2000 No 38 ss 30C, 30I, 30J
37: New section 20A and cross-heading inserted
After section 20 Management of EM requirement
20A: Management of EM requirement
An EM requirement, if imposed, is managed under Schedule 3
38: Section 21 amended (Service of control order)
In section 21(3) engagement in , or commission of,
39: Section 22 amended (Information to be served with interim control order made without notice)
In section 22(i)﻿(ii) section 16(1)﻿(b) or 16B(1)﻿(b)
40: Section 25 amended (Duration)
Replace section 25(6)
6: A final control order expires (subject to earlier variation, discharge, or expiry of the order or its requirements and to section 26(2)) at the end of its duration.
7: However, the expiry of a final control order does not prevent another control order being applied for and made in respect of the same relevant person, but based on—
a: engagement in later and different terrorism-related activities in a foreign country; or
b: commission of a later and different terrorism-related New Zealand offence.
41: Section 26 amended (Renewal)
1: Replace section 26(4)
4: No control order can be renewed if it has expired under—
a: section 28B
b: section 29 (expiry if relevant person sentenced to long-term sentence).
2: In section 26(7) and 16(1) , 16(1), and 16B(1)
42: Section 28 amended (Suspension)
In section 28(1)﻿(a) on remand , or in a prison on a recall
43: New sections 28A and 28B inserted
After section 28
28A: Discharge if conviction or sentence overturned on criminal appeal
When control order discharged
1: A control order made in respect of a relevant offender is discharged if, on a criminal appeal by the offender or by a prosecutor, the conviction or sentence specified in section 6(5) or (6)
2: The control order is discharged regardless of whether the relevant person is a relevant person in reliance on section 6(7) When conviction overturned
3: The conviction is overturned
a: without an order for retrial; or
b: with a retrial being ordered but—
i: not being proceeded with; or
ii: not resulting in a conviction specified in section 6(5) or (6)
iii: being ended by a stay of proceedings. When sentence overturned
4: The sentence is overturned
a: it is set aside or remitted; and
b: another sentence (whether more or less severe) specified in section 6(5) or (6)
5: The sentence is also overturned
a: it, or any part of it, or any condition of it, is varied (by an appeal court); and
b: because of that variation, the sentence imposed on the offender for the relevant offence is not a sentence specified in section 6(5) or (6)
28B: Expiry if relevant person recalled to prison and remains in prison because of that recall for at least 2 years
1: This section applies if, while a relevant person is subject to a control order, the relevant person is recalled to prison and remains in prison because of that recall (and not because of any later recall to prison of that relevant person) for at least 2 years.
2: The control order and its requirements expire, and the control order cannot be replaced by a final control order or renewed.
3: However, the expiry of the control order does not prevent another control order being applied for and made in respect of the same relevant person, but based on—
a: engagement in later and different terrorism-related activities in a foreign country; or
b: commission of a later and different terrorism-related New Zealand offence.
44: Section 29 amended (Expiry if relevant person sentenced to long-term sentence)
Replace section 29(2)
2: The control order and its requirements expire, and the control order cannot be replaced by a final control order or renewed.
3: However, the expiry of the control order does not prevent another control order being applied for and made in respect of the same relevant person, but based on—
a: engagement in later and different terrorism-related activities in a foreign country; or
b: commission of a later and different terrorism-related New Zealand offence.
45: Section 33 amended (Automatic suppression of identity of relevant person)
1: Replace section 33(4)
3A: The court may make an order that permits the publication—
a: on its own initiative; or
b: on an application for the purpose made by the Commissioner or by the person.
3B: In particular, the court may make an order that permits the publication—
a: on an application for the purpose made by the Commissioner, if—
i: the Commissioner has made, without notice to the person, an application for a control order in respect of the person; and
ii: the court has not yet heard or finally determined the application for the control order in respect of the person:
b: on an application for the purpose made by the Commissioner or by the person, if—
i: the Commissioner has made, on notice to the person, an application for a control order in respect of the person; and
ii: the court has not yet heard or finally determined the application for the control order in respect of the person.
4: The court may make an order that permits the publication—
a: only if satisfied that permitting the publication is consistent with the purposes of this section; and
b: if the order is made on an application by the person, only if satisfied that the person understands the nature and effect of their decision to apply for the order.
2: After section 33(5)
5A: For the purposes of subsection (5)﻿(a), the ground in section 21(1)﻿(i) of the Human Rights Act 1993 must be taken to be age, which means any age commencing with the age of 16 years
46: Schedule 1 amended
In Schedule 1
a: insert the Part set out in Part 2 of Schedule 1
b: make all necessary consequential amendments.
47: Schedule 2 amended
In Schedule 2 privacy) , and their ability to comply with any conditions of any sentence they are serving, order they are subject to, or relevant conditions imposed upon them
48: New Schedule 3 inserted
After Schedule 2 Schedule 3 Schedule 2