Control orders were first enacted through the Anti-Terrorism Act (No 2) 2005 (Cth) in response to terrorist attacks occurring in the early 2000s. The Anti-Terrorism Act was a large legislative package that saw the creation of several mechanisms, including preventative detention orders, aimed at preventing the occurrence of terrorism offences in Australia. Control orders are now governed by Division 104 of the Criminal Code Act 1995 (Cth). Division 104 includes a sunset provision lasting 5 years. The last review of the legislation occurred in 2023 and subsequently, the operation of the control order regime was extended to 7 December 2026.
Control orders are made with three key objectives:
- to protect the public from a terrorist act;
- to prevent the provision of support for or the facilitation of a terrorist act;
- to prevent the provision of support for or the facilitation of the engagement in a hostile activity in a foreign country.
What is a control order
A control order imposes certain obligations, prohibition and restrictions on a person. These conditions can include prohibitions or restrictions on movement, travel, association, communication and technology use. Some orders have conditions requiring participation in education or counselling.
Control orders may be requested by a senior member of the Australian Federal Police (AFP) if they suspect on reasonable grounds (s 104.2(2) Criminal Code act 1995 (Cth):
- it would substantially help prevent a terrorist attack;
- the individual has trained or participated in training with a listed terrorist organisation;
- the individual has engaged in a hostile activity in a foreign country;
- the individual has been convicted in Australia of an offence relating to terrorism, a terrorist organisation or terrorist act; or
- has been convicted overseas of an offence that would, if it occurred in Australia, be a terrorism offence within the definition of subsection 3(1) the Crimes Act 1914 (Cth).
As at 6 August 2023, there have only been 28 control orders made under these powers.
How a control order can be obtained
The Australian Federal Police (AFP) must apply (with the consent of the Attorney-General – s104.2 Criminal Code Act 1995 (Cth)) to the Federal Court of Australia seeking an interim control order. This application occurs in the absence of the proposed subject of the order.
The Court may only make an interim order if it is satisfied, on the balance of probabilities, that the order meets the following criteria:
- making the order would substantially assist in preventing a terrorist act, or the person has provided training to, or received training from, a listed terrorist organisation; and
- each of the obligations, prohibitions and restrictions to be imposed on the person by the order is reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the public from a terrorist act (s104.4(1) Criminal Code Act 1995 (Cth)).
Once the order is made by the Court, it must be personally served on the subject for the order to take effect (s 104.12 Criminal Code Act 1995 (Cth)). This must occur as soon as practicable after the order is made. The order will then be listed in court. On the first occasion, the court may consider whether to confirm, declare void, or revoke the order.
Duration of control orders
(under ss104.16(d) and 104.28 Criminal Code Act 1995 (Cth))
| Age range | Maximum duration of confirmed control order |
| Under 14 years old | Control order may not be requested, made or confirmed. |
| 14 – 17 years old | 3 months |
| 18 + years old | 12 months |
While control orders may not last longer than the above periods, successive orders may be imposed.
Note: the period of the control order commences when the interim control order takes effect.
Potential conditions of a control order
(under s104.5A Criminal Code Act 1995 (Cth))
- a prohibition or restriction on the person being at specified areas or places;
- a prohibition or restriction on the person leaving Australia;
- a requirement that the person remain at specified premises between specified times each day, or on specified days;
- a requirement that the person wear a tracking device;
- a requirement that the person carry at all times a specified mobile phone and be available to answer any call from a specified authority or, as soon as reasonably practicable, return a call that the person was unable to answer;
- a prohibition or restriction on the person communicating or associating with specified individuals;
- a prohibition or restriction on the person accessing or using specified forms of telecommunication or other technology (including the internet);
- a prohibition or restriction on the person possessing or using specified articles or substances;
- a prohibition or restriction on the person carrying out specified activities (including in respect of his or her work or occupation);
- a requirement that the person report to specified persons at specified times and places;
- a requirement that the person allow himself or herself to be photographed;
- a requirement that the person allow impressions of his or her fingerprints to be taken; and
- a requirement that the person participate in specified counselling or education.
Variation of orders
A person who is subject to a confirmed control order may apply to the court to revoke or vary the order (s 104.18(1) Criminal Code Act 1995 (Cth)).
Notice of the application along with the grounds on which the variation or revocation is sought must be given to the Commissioner of the AFP (s 104.27) Criminal Code Act 1995 (Cth)). In considering the application, the court may:
- Revoke the order;
- Vary the order; or
- Dismiss the application.
Offences relating to control orders
| Section | Offence | Maximum penalty |
| 104.27 | Contravening a condition of the order | Imprisonment for five years. |
| 104.27A | Engaging in conduct which results in interference with, or disruption or loss of, a function a monitoring device or any related monitoring equipment required to be worn under the control order. | Imprisonment for five years. |
If you or someone you know is made subject to a control order or is charged with a contravening a control order it is essential you receive advice from an experience criminal defence lawyer at any early stage. As leaders in criminal defence, we are specifically trained to assist and negotiate on your behalf to ensure the best possible outcome.
To discuss your options, call Hugo Law Group in Sydney NSW (02 9696 1361), Canberra ACT (02 5104 9640), Perth WA (08 6255 6909), or Northern NSW (02 5552 1902) to make an appointment to speak to one of our lawyers.
