(c) the period during which the order is in force, which must be a period of no more than 28 days that the Court is satisfied is reasonably necessary to determine the application for the continuing detention order or extended supervision 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).
(8) The total period of all interim supervision orders made in relation to the offender before the Court makes a decision on the application for the continuing detention order or extended supervision order must not be more than 3 months, unless the Court is satisfied that there are exceptional circumstances.
Subdivision CB—Varying an extended supervision order or interim supervision order
105A.9B Application for variations of extended supervision orders and interim supervision orders
Requirement to apply for variation
(1A) If the AFP Minister is satisfied that a condition in an extended supervision order or interim supervision order in relation to a terrorist offender is no longer reasonably necessary, or 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, the Minister or a legal representative of the Minister must apply to a Supreme Court of a State or Territory to vary, under section 105A.9C, the order by:
(a) removing the condition; or
(b) varying the condition.
Note 1: The AFP Minister or legal representative may also apply under subsection (1) for other variations of the order, including adding conditions.
Note 2: A copy of the application must be given to the offender under section 105A.14A.
Who may otherwise apply
(1) Any of the following persons (the applicant) may (subject to subsection (1A)) apply to a Supreme Court of a State or Territory to vary, under section 105A.9C, an extended supervision order or interim supervision order in relation to a terrorist offender, by adding, varying or removing one or more conditions mentioned in section 105A.7B:
(a) the AFP Minister or a legal representative of the AFP Minister;
(b) the terrorist offender or a legal representative of the terrorist offender.
Note: If the application is made by or on behalf of the AFP Minister, a copy of the application must be given to the offender under section 105A.14A.
(2) An application under subsection (1A) or (1) must be made to the Supreme Court of the State or Territory where the offender resides.
Note: See section 100.1 for the definition of reside.
(3) An application under subsection (1A) or (1) must include:
(a) a copy of the conditions as sought to be varied; and
(b) if the applicant is the AFP Minister or a legal representative or the AFP Minister—the following material:
(i) an explanation as to why each condition that is sought to be added or varied should be added or varied;
(ii) if the AFP Minister is aware of any facts relating to why any of those conditions should not be added or varied—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);
(iii) the outcomes and particulars of all previous applications made under this section (whether by or on behalf of the AFP Minister or the terrorist offender) for variations of the order; and
(c) if the applicant is the terrorist offender or a legal representative of the terrorist offender—the outcomes and particulars of all previous applications made under this section by or on behalf of the terrorist offender for variations of the order; and
(d) if a report was obtained under section 105A.18D in relation to the terrorist offender for the purposes of determining whether to apply for the variation—a copy of the report.
(4) If the applicant is the terrorist offender or a legal representative of the terrorist offender, the applicant:
(a) may also include in the application an explanation as to why each condition that is sought to be varied or removed should be varied or removed; and
(b) must cause a copy of the application to be served on the AFP Minister within 2 business days after the application is made.
Adducing additional evidence
(5) The following persons may adduce additional evidence (including by calling witnesses or producing material), or make additional submissions, to the Court in relation to the application to vary the order:
(a) the AFP Minister;
(b) one or more AFP members;
(c) the terrorist offender;
(d) one or more representatives of the offender.
(6) Subsection (5) does not otherwise limit the power of the Court to control proceedings in relation to an application to vary an extended supervision order.
105A.9C Varying an extended supervision order or interim supervision order (other than by consent)
(1) If an application is made in accordance with subsection 105A.9B(1A) or (1), and subsection (2), to a Supreme Court of a State or Territory to vary an extended supervision order or interim supervision order in relation to a terrorist offender, the Court may vary the order, but only if:
(a) for an application for the order to be varied by adding or varying conditions—the Court is satisfied on the balance of probabilities that each of the conditions being added or varied is 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; and
(b) for an application for the order to be varied by removing conditions—the Court is not satisfied on the balance of probabilities that each of the conditions being removed is 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: See section 105A.9E for the terms of a varied extended supervision order or interim supervision order.
(2) For the purposes of subsection (1), in determining whether each of the conditions to be added, varied or removed 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).
(3) The AFP Minister bears the onus of satisfying the Court of the matters referred to in subsection (1).
Relevant experts
(4) The Court may appoint one or more relevant experts for the purposes of the proceedings relating to the application. If the Court does so, subsections 105A.6(4) to (7) apply in relation to the proceedings.
(5) 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 (4).
(6) Subsection (4) does not prevent the AFP Minister, the offender, or a legal representative of the AFP Minister or offender, from calling another relevant expert as a witness in the proceedings.
105A.9D Varying extended supervision order or interim supervision order by consent
(1) Any of the following persons (the applicant) may apply to a Supreme Court of a State or Territory to vary an extended supervision order or interim supervision order in relation to a terrorist offender by varying or removing one or more conditions mentioned in section 105A.7B:
(a) the AFP Minister or a legal representative of the AFP Minister;
(b) the terrorist offender or a legal representative of the terrorist offender.
(2) The application must be made to the Court of the State or Territory where the offender resides.
Note: See section 100.1 for the definition of reside.
(3) The Court may vary the order if the Court is satisfied that:
(a) written consent to the variation has been given by:
(i) if the applicant is the AFP Minister or a legal representative of the AFP Minister—the offender; or
(ii) if the applicant is the terrorist offender or a legal representative of the terrorist offender—the AFP Minister; and
(b) the variation does not involve adding any conditions to the order; and
(c) the variation is appropriate in the circumstances.
105A.9E Terms of a varied extended supervision order or interim supervision order
An extended supervision order or interim supervision order in relation to a person that is varied under section 105A.9C, 105A.9D or 105A.12A must:
(a) state that the Court is satisfied:
(i) for a variation under subsection 105A.9C(1) or 105A.9D(3)—of the matters mentioned in that subsection; or
(ii) for a variation under section 105A.12A—of the matters mentioned in subsection 105A.12A(1), (3) or (4) (as the case requires); and
(b) specify the variations to the conditions that are to be made; and
(c) state the period during which the order, as varied, is in force; and
(d) state that the offender’s lawyer may request a copy of the order.
Subdivision D—Review of post‑sentence order
105A.10 Periodic review of post‑sentence order
When application for review must be made
(1A) The AFP Minister, or a legal representative of the AFP Minister, must, before the end of the period referred to in subsection (1B), apply to a Supreme Court of a State or Territory for a review of a post‑sentence order that is in force in relation to a terrorist offender.
Note 1: For when an application is not required to be made, see subsection (2).
Note 2: A copy of the application must be given to the terrorist offender under section 105A.14A.
(1B) The application must be made:
(a) before the end of 12 months after the order began to be in force (unless paragraph (b) or (c) applies); or
(b) if the order has been reviewed under this Subdivision by a Supreme Court of a State or Territory—before the end of 12 months after the most recent review ended (unless paragraph (c) applies); or
(c) if paragraph (a) or (b) would otherwise apply and, at the time described in that paragraph, the post‑sentence order is suspended under section 105A.18C because the offender is detained in custody in a prison—on or before the day the offender’s detention in a prison ends.
(1C) Despite subsection (1A), an application for a review is not required if an application for a new post‑sentence order in relation to the offender has been made and not withdrawn.
Review must be conducted before end of period
(1) On receiving the application, the Court must begin the review of the order before the end of that period.
Note: For the process for reviewing a post‑sentence order, see section 105A.12.
Where application must be made
(3) The application must be made to the Court of the State or Territory where:
(a) for a continuing detention order—the prison in which the offender is detained is located; or
(b) for an extended supervision order—the offender resides.
Note: See section 100.1 for the definition of reside.
Order ceases to be in force if application not made
(4) If an application is not made in accordance with this section, the order ceases to be in force at the end of the period referred to in subsection (1B).
105A.11 Review of post‑sentence order on application
(1) The following persons may apply to a Supreme Court of a State or Territory for review of a post‑sentence order:
(a) the AFP Minister or a legal representative of the AFP Minister;
(b) a terrorist offender, or a legal representative of a terrorist offender, in relation to whom the post‑sentence order is in force.
Note 1: For the process for reviewing a post‑sentence order, see section 105A.12.
Note 2: A copy of the application must be given to the terrorist offender under section 105A.14A.
(1A) The application must include a copy of any report obtained under section 105A.18D for the purposes of determining whether an application for a review of the extended supervision order should be made.
(2) The Court may review the order if the Court is satisfied that:
(a) there are new facts or circumstances which would justify reviewing the order; or
(b) it would be in the interests of justice, having regard to the purposes of the order and the manner and effect of its implementation, to review the order.
(3) Otherwise, the Court must dismiss the application.
(4) The application must be made to the Court of the State or Territory where:
(a) for a continuing detention order—the prison in which the offender is detained is located; or
(b) for an extended supervision order—the offender resides.
Note: See section 100.1 for the definition of reside.
105A.12 Process for reviewing a post‑sentence order
(1) This section applies if, under section 105A.10 or 105A.11, a Supreme Court of a State or Territory reviews a post‑sentence order that is in force in relation to a terrorist offender.
Parties to the review
(2) The parties to the review are:
(a) the AFP Minister; and
(b) the offender.
Relevant experts
(3) The Court may appoint one or more relevant experts for the purposes of the review. If the Court does so, subsections 105A.6(4) to (7) apply in relation to the review.
(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).
(3B) Subsection (3) 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 review.
Affirming or revoking the order
(4) The Court may affirm the order (including affirm the order with variations made under section 105A.12A) if, after having regard to the matters in section 105A.6B, the Court is satisfied that the Court:
(a) for a continuing detention order—could have made the order under section 105A.7; or
(b) for an extended supervision order—could have made the order under section 105A.7A, or could have made the order disregarding paragraph 105A.7A(1)(c).
Note: 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 subsection (4) of this section (see subsection 105A.6B(3) and section 105A.13).
(5) If the review is of a continuing detention order, and the Court does not affirm the order under subsection (4), the Court must:
(a) consider making an extended supervision order in relation to the offender under section 105A.7A; and
(b) seek the following material from the AFP Minister:
(i) a copy of the proposed conditions that would be sought for an extended supervision order;
(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
(c) if the court does not make an extended supervision order in relation to the offender—revoke the continuing detention order.
Note: If the Court makes an extended supervision order in relation to the offender, the continuing detention order is revoked under subsection 105A.7A(6).
(5AA) If the Court does not affirm an extended supervision order under subsection (4), the Court must revoke the order.
Onus of satisfying Court
(5A) The AFP Minister must ensure that reasonable inquiries are made to ascertain any facts known to any Commonwealth law enforcement officer or intelligence or security officer that would reasonably be regarded as supporting a finding that the order should not be affirmed.
(6) The AFP Minister bears the onus of satisfying the Court of the matters referred to in section 105A.7 or 105A.7A.
(6A) The AFP Minister, or the legal representative of the AFP Minister, must present to the Court:
(a) a copy of any material in the possession of the AFP Minister or legal representative; and
(b) a statement of any facts that the AFP Minister or legal representative is aware of;
that would reasonably be regarded as supporting a finding that:
(c) the order should not be affirmed, or should not be affirmed in the terms in which the order is made; or
(d) if the court is considering making an extended supervision order under subsection (5)—an extended supervision order should not be made.
105A.12A Varying post‑sentence orders after review
Varying the period specified by a post‑sentence order
(1) A Supreme Court of a State or Territory must vary a post‑sentence order in relation to a terrorist offender to specify a shorter period for which the order will be in force if:
(a) the Court affirms the order under subsection 105A.12(4); and
(b) the Court is not satisfied that the period currently specified is reasonably necessary to prevent the unacceptable risk of the offender committing a serious Part 5.3 or 5.3A offence.
The shorter period must be a period that the Court is satisfied is reasonably necessary to prevent the unacceptable risk.
Note: See section 105A.9E for the terms of a varied extended supervision order.
Varying or removing conditions
(2) A Supreme Court of a State or Territory must vary, or remove, a condition imposed by an extended supervision order if:
(a) the Court affirms the order under subsection 105A.12(4); and
(b) the Court is not satisfied that the condition is 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.