(3) The Court may, either at the preliminary hearing or at any later time in the proceeding, appoint one or more relevant experts if the Court considers that doing so is likely to materially assist the Court in deciding whether to make a post‑sentence order in relation to the offender.
(3A) The AFP Minister, the offender, or a legal representative of the AFP Minister or offender, may nominate one or more relevant experts for the purposes of subsection (3).
(4) The relevant expert who is appointed must:
(a) conduct an assessment of the risk of the offender committing a serious Part 5.3 or 5.3A offence; and
(b) provide a report of the expert’s assessment to the Court, the AFP Minister and the offender.
Note: For giving documents to a terrorist offender who is in custody, see section 105A.15.
Attendance and participation at assessment
(5) The offender must attend the assessment.
Note: The assessment may be conducted over a number of sessions.
(5A) The answer to a question or information given at the assessment, and answering a question or giving information at the assessment, are not admissible in evidence against the offender in:
(a) any criminal proceedings, except any proceedings relating to sentencing for an offence against Division 104 or this Division (including any appeal in relation to those proceedings); or
(b) any civil proceedings against the offender, except proceedings under Division 104 or this Division (including any appeal in relation to those proceedings).
(6) The Court must ensure that the effect of subsections (5), (5A) and (9) is explained to the offender.
Contents of report
(7) The expert’s report may include any one or more of the following matters:
(a) the expert’s assessment of the risk of the offender committing a serious Part 5.3 or 5.3A offence;
(b) reasons for that assessment;
(c) the pattern or progression to date of behaviour on the part of the offender in relation to serious Part 5.3 or 5.3A offences, and an indication of the nature of any likely future behaviour on his or her part in relation to serious Part 5.3 or 5.3A offences;
(d) efforts made to date by the offender to address the causes of his or her behaviour in relation to serious Part 5.3 or 5.3A offences, including whether he or she has actively participated in any rehabilitation or treatment programs;
(e) if the offender has participated in any rehabilitation or treatment programs—whether or not this participation has had a positive effect on him or her;
(f) any relevant background of the offender, including developmental and social factors;
(g) factors that might increase or decrease any risks that have been identified of the offender committing a serious Part 5.3 or 5.3A offence;
(h) any other matters the expert considers relevant.
Other relevant experts
(8) This section does not prevent the AFP Minister, the offender, or a legal representative of the AFP Minister or offender, from calling his or her own relevant expert as a witness in the proceeding.
Assessments conducted for certain purposes
(9) Without limiting subsection (5A), an assessment of an offender conducted under paragraph (4)(a), and the report of the assessment, may be taken into account in proceedings to make or vary any post‑sentence order or interim post‑sentence order, or to review any post‑sentence order, in relation to the offender.
105A.6A Determining an application for a post‑sentence order
Determining applications for continuing detention orders
(1) If an application is made under section 105A.5 to the Supreme Court of a State or Territory for a continuing detention order in relation to a terrorist offender, the Court may determine the application by:
(a) making a continuing detention order under section 105A.7; or
(b) making an extended supervision order under section 105A.7A; or
(c) dismissing the application.
Determining applications for extended supervision orders
(2) If an application is made under section 105A.5 to the Supreme Court of a State or Territory for an extended supervision order in relation to a terrorist offender, the Court may determine the application by:
(a) making an extended supervision order under section 105A.7A; or
(b) dismissing the application.
105A.6B Matters a Court must have regard to in making a post‑sentence order
(1) In deciding whether the Court is satisfied as referred to in paragraph 105A.7(1)(b) or 105A.7A(1)(b) in relation to a terrorist offender, a Supreme Court of a State or Territory must have regard to the following matters:
(a) the object of this Division;
(b) any report of an assessment received from a relevant expert, and the level of the offender’s participation in the assessment, under:
(i) section 105A.6; or
(ii) section 105A.18D;
(c) the results of any other assessment conducted by a relevant expert of the risk of the offender committing a serious Part 5.3 or 5.3A offence, and the level of the offender’s participation in any such assessment;
(d) any report, relating to the extent to which the offender can reasonably and practicably be managed in the community, that has been prepared by:
(i) the relevant State or Territory corrective services; or
(ii) any other person or body who is competent to assess that extent;
(e) any treatment or rehabilitation programs in which the offender has had an opportunity to participate, and the level of the offender’s participation in any such programs;
(f) the level of the offender’s compliance with any obligations to which the offender is or has been subject while:
(i) on release on parole for any offence referred to in paragraph 105A.3(1)(a); or
(ii) subject to a post‑sentence order, interim post‑sentence order or control order;
(g) the offender’s history of any prior convictions for, and findings of guilt made in relation to, any offence referred to in paragraph 105A.3(1)(a);
(h) the views of the sentencing court at the time any sentence for any offence referred to in paragraph 105A.3(1)(a) was imposed on the offender;
(ha) whether the offender is subject to any order under a law of a State or Territory that is equivalent to a post‑sentence order, and if so, the conditions of the order;
(i) any other information as to the risk of the offender committing a serious Part 5.3 or 5.3A offence.
(2) Subsection (1) does not prevent the Court from having regard to any other matter the Court considers relevant.
(3) To avoid doubt, section 105A.13 (civil evidence and procedure rules in relation to post‑sentence order proceedings) applies to the Court’s consideration of the matters referred to in subsections (1) and (2) of this section.
105A.7 Making a continuing detention order
(1) A Supreme Court of a State or Territory may make a written order under this subsection if:
(a) an application is made in accordance with section 105A.5 for a continuing detention order in relation to a terrorist offender; and
(b) after having regard to matters in accordance with section 105A.6B, the Court is satisfied to a high degree of probability, on the basis of admissible evidence, that the offender poses an unacceptable risk of committing a serious Part 5.3 or 5.3A offence; and
(c) the Court is satisfied that there is no less restrictive measure available under this Part that would be effective in preventing the unacceptable risk.
Note 1: The rules of evidence and procedure for civil matters apply when the Court has regard to matters in accordance with section 105A.6B, as referred to in paragraph (1)(b) of this section (see subsection 105A.6B(3) and section 105A.13).
Note 2: For paragraph (1)(c), an example of a less restrictive measure that is available under this Part is an extended supervision order. A court can make an extended supervision order under section 105A.7A even if a continuing detention order was applied for (see subsection 105A.6A(1)).
(2) If the Court is not satisfied as mentioned in paragraph (1)(b) or (c) (or both), then the Court must:
(a) seek the following material from the AFP Minister:
(i) a copy of the proposed conditions that would be sought for an extended supervision order in relation to the offender;
(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); and
(b) consider whether to make an extended supervision order under section 105A.7A in relation to the offender.
Note: A copy of the material must be given to the terrorist offender under section 105A.14A.
Onus of satisfying Court
(3) The AFP Minister bears the onus of satisfying the Court of the matters referred to in paragraphs (1)(b) and (c).
Period of order
(4) The order must specify the period during which it is in force.
Note: The order may be suspended during the period that it is in force if the offender is detained in custody in a prison other than as a result of the order (see section 105A.18C).
(5) The period must be a period of no more than 3 years that the Court is satisfied is reasonably necessary to prevent the unacceptable risk.
Court may make successive continuing detention orders
(6) To avoid doubt, subsection (5) does not prevent a Supreme Court of a State or Territory making a continuing detention order in relation to a terrorist offender that begins to be in force immediately after a previous continuing detention order in relation to the offender ceases to be in force.
105A.7A Making an extended supervision order
(1) A Supreme Court of a State or Territory may make a written order under this subsection, in accordance with sections 105A.7B and 105A.7C, if:
(a) any of the following applies:
(i) an application is made in accordance with section 105A.5 for an extended supervision order in relation to a terrorist offender;
(ii) an application is made in accordance with section 105A.5 for a continuing detention order in relation to a terrorist offender, and the Court is not satisfied as mentioned in paragraph 105A.7(1)(b) or (c) (or both);
(iii) the Court has reviewed under section 105A.12 a continuing detention order in relation to a terrorist offender and the Court is not satisfied as mentioned in paragraph 105A.12(4)(a); and
(b) after having regard to matters in accordance with section 105A.6B, the Court is satisfied on the balance of probabilities, on the basis of admissible evidence, that the offender poses an unacceptable risk of committing a serious Part 5.3 or 5.3A offence; and
(c) the Court is satisfied on the balance of probabilities that:
(i) each of the conditions; and
(ii) the combined effect of all of the conditions;
to be imposed on the offender by the order is reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the community from that unacceptable risk.
Determining whether conditions are reasonably necessary, appropriate and adapted
(2) For the purposes of paragraph (1)(c), in determining whether each of the conditions to be imposed on the offender 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 object of this Division (see section 105A.1).
Onus of satisfying Court
(3) The AFP Minister bears the onus of satisfying the Court of the matters referred to in paragraphs (1)(b) and (c).
Content of order
(4) The order must:
(a) state that the Court is satisfied of the matters mentioned in paragraphs (1)(b) and (c); and
(b) specify the name of the offender to whom the order relates; and
(c) specify all of the conditions, and any exemption conditions, that are to be imposed in accordance with section 105A.7B or 105A.7C on the offender by the order; and
(d) specify the period during which the order is to be in force, which must be a period of no more than 3 years that the Court is satisfied is reasonably necessary to prevent the unacceptable risk; and
(e) state that the offender’s lawyer may request a copy of the order.
Note: The order may be suspended during the period that it is in force if the offender is detained in custody in a prison (see section 105A.18C).
Court may make successive extended supervision orders
(5) To avoid doubt, paragraph (4)(d) does not prevent a Supreme Court of a State or Territory making an extended supervision order in relation to a terrorist offender that begins to be in force immediately after a previous extended supervision order, or continuing detention order, in relation to the offender ceases to be in force.
Automatic revocation of continuing detention orders etc.
(6) A continuing detention order or interim detention order that is in force in relation to a terrorist offender is revoked by force of this subsection if:
(a) a Court makes an extended supervision order in relation to the offender; and
(b) the continuing detention order or interim detention order is in force immediately before the extended supervision order begins to be in force.
105A.7B Conditions of extended supervision orders and interim supervision orders
(1) The conditions that a Court may impose on a terrorist offender by an extended supervision order or interim supervision order are:
(a) any conditions that the Court is satisfied; and
(b) those conditions whose combined effect the Court is satisfied;
on the balance of probabilities, are reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the community from the unacceptable risk of the offender committing a serious Part 5.3 or 5.3A offence.
Note: The Court may, under section 105A.7C, specify conditions from which exemptions may be granted.
(1A) If the terrorist offender is subject to an order under a law of a State or Territory that is equivalent to a post‑sentence order, the Court must consider the conditions under that State or Territory order in imposing conditions in accordance with subsection (1).
General rules about conditions
(2) To avoid doubt, without limiting subsection 33(3A) of the Acts Interpretation Act 1901, a condition imposed under this section may:
(a) prohibit or restrict specified conduct of the offender, or impose obligations on the offender; or
(b) impose restrictions and obligations on the offender in relation to classes of conduct, and prohibit other classes of that conduct; or
(c) impose different restrictions, obligations and prohibitions in relation to different classes of conduct; or
(d) for conduct that is prohibited by a condition described in a paragraph of subsection (3)—impose restrictions and obligations on the offender in relation to that conduct instead of prohibiting that conduct; or
(e) for conduct described in a paragraph of subsection (3) or (5)—impose different restrictions, obligations and prohibitions in relation to that conduct.
(2A) A condition imposed under this section must not require the offender to remain at specified premises for more than 12 hours within any 24 hours.
General conditions
(3) Without limiting this section, the conditions that the Court may impose in accordance with subsection (1) include conditions relating to the following:
(a) that the offender not be present at one or more of the following:
(i) specified areas or places;
(ii) specified classes of areas or places;
(iii) any area or place determined by a specified authority;
(b) that the offender reside at specified premises, and not begin to reside at any other premises without the prior permission of a specified authority;
(c) that the offender remain at specified premises between specified times each day, or on specified days, subject to subsection (2A);
(d) that the offender not leave Australia, or the State or Territory in which the offender’s residence is located;
(e) that the offender provide a specified authority with the offender’s passport (or passports) while the order is in force;
(f) that the offender not change the offender’s name, or use any name that is not specified in the order;
(g) that the offender not apply for one or more of the following:
(i) any Australian travel document;
(ii) any travel document of a foreign country;
(iii) any licence to operate equipment, machinery, a heavy vehicle or a weapon, or any licence to possess a weapon;
(h) that the offender not communicate or associate by any means (including through third parties) with one or more of the following:
(i) specified individuals;
(ii) specified classes of individuals;
(iii) any individuals determined by a specified authority;
(i) that the offender not access or use specified forms of telecommunication or other technology (including the internet);
(j) that the offender not possess or use specified articles or substances;
(k) that the offender not carry out specified activities;
(l) that the offender not engage in one or more of the following:
(i) specified work;
(ii) specified classes of work;
(iii) specified activities relating to specified work or classes of work;
(m) that the offender not in engage in any training or education without the prior permission of a specified authority;
(n) that the offender do any or all of the following:
(i) attend and participate in treatment, rehabilitation or intervention programs or activities;
(ii) undertake psychological or psychiatric assessment or counselling;
as specified in the order or as directed by a specified authority;
(o) that the offender attend and participate in interviews and assessments (including for the purposes of paragraph (n)) as specified in the order or as directed by a specified authority;