(3) The Court must be satisfied that a condition that is varied under subsection (2) is (after the variation) 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.
Varying to add conditions
(4) The Court may vary an extended supervision order to add one or more conditions if the Court is satisfied that the conditions 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.
Object of this Division
(5) For the purposes of subsections (3) and (4), in determining whether a condition to be varied or 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
(6) The AFP Minister bears the onus of satisfying the Court of the matters referred to in subsection (1), (3) or (4).
Subdivision E—Provisions relating to post‑sentence order proceedings
105A.13 Civil evidence and procedure rules in relation to post‑sentence order proceedings
(1) A Supreme Court of a State or Territory must, subject to subsection (2), apply the rules of evidence and procedure for civil matters during a post‑sentence order proceeding.
(2) Despite anything in the rules of evidence and procedure, the Court may receive in evidence in the proceeding evidence of:
(a) the level of the offender’s compliance with any conditions (however described) to which he or she is or has been subject while:
(i) on release on parole for any offence; or
(ii) subject to an extended supervision order, interim supervision order or control order; and
(b) the offender’s history of any prior convictions for, and findings of guilt made in relation to, any offence.
105A.14 Adducing evidence and making submissions
A party to a post‑sentence order proceeding in a Supreme Court of a State or Territory may adduce evidence (including by calling witnesses or producing material), or make submissions, to the Court in relation to the proceeding.
105A.14A Giving copies of applications etc. to terrorist offenders
(1) This section applies if the AFP Minister, or a legal representative of the AFP Minister, (the applicant) applies to a Supreme Court of a State or Territory for:
(a) a post‑sentence order or interim post‑sentence order; or
(b) a variation of an extended supervision order or interim supervision order under section 105A.9B; or
(c) a review of a post‑sentence order;
in relation to a terrorist offender.
(2) Within 2 business days after the application is made, the applicant must (subject to sections 105A.14B to 105A.14D) give a copy of the application to the offender personally, and to the offender’s legal representative.
Note: For giving documents to a terrorist offender who is in prison, see section 105A.15.
(3) If the Court seeks material from the AFP Minister under paragraph 105A.7(2)(a), 105A.9(8)(a) or 105A.12(5)(b), within 2 business days after the material is provided to the Court, the applicant must (subject to sections 105A.14B to 105A.14D) give a copy of the material to the offender personally, and to the offender’s legal representative.
(4) If:
(a) the post‑sentence order or interim post sentence order is made or varied; and
(b) neither the offender nor a legal representative of the offender is present during the proceedings in which the order is made or varied;
the applicant must (subject to sections 105A.14B to 105A.14D), within 2 business days after the order is made or varied, give to the offender personally, and the offender’s legal representative, a copy of the order that is made, or of the order as varied.
105A.14B Information excluded from application or material—national security information
(1) This section applies if the AFP Minister, or a legal representative of the AFP Minister, (the applicant) gives a copy of an application or material to a terrorist offender, or a terrorist offender’s legal representative, (the recipient) under subsection 105A.14A(2) or (3).
(2) The applicant is not required to include any information in the application or material if a Minister (the decision‑maker) is likely to take:
(a) any actions in relation to the information under the National Security Information (Criminal and Civil Proceedings) Act 2004; or
(b) seek an order of a court preventing or limiting disclosure of the information.
(3) However, the applicant must (subject to subsection (4)) give the recipient personally a complete copy of the application or material if any of the following events occurs:
(a) the decision‑maker decides not to take any of the actions referred to in paragraph (2)(a) or (b);
(b) a Minister gives a certificate under Subdivision C of Division 2 of Part 3A of the National Security Information (Criminal and Civil Proceedings) Act 2004;
(c) a court makes an order in relation to any action taken by the decision‑maker under paragraph (2)(a) or (b).
(4) Subsection (3) is subject to:
(a) the certificate referred to in paragraph (3)(b); or
(b) any order made by a court.
(5) The copy of the application or material must be given under subsection (3):
(a) within 2 business days of the event referred to in subsection (3); and
(b) within a reasonable period before:
(i) if the application is for a post‑sentence order—the preliminary hearing referred to in section 105A.6; or
(ii) if the application is for an interim detention order—the hearing referred to in subsection 105A.9(1A); or
(iii) if the application is for an interim supervision order—the hearing referred to in subsection 105A.9A(2); or
(iv) if the application is for a variation or review of a post‑sentence order, or for a variation of an interim post‑sentence order—the hearing on the application.
105A.14C Information excluded from application or material—public interest immunity
(1) This section applies if:
(a) the AFP Minister, or a legal representative of the AFP Minister, (the applicant) gives a copy of an application or material to a terrorist offender, or a terrorist offender’s legal representative, under subsection 105A.14A(2) or (3); and
(b) information (however described) is excluded from the application or material on the basis of public interest immunity.
(2) The applicant must give written notice to the offender, and the offender’s legal representative, personally stating that the information has been excluded on the basis of public interest immunity. The notice must be given at the time that a copy of the application or material is given to the offender or legal representative.
(3) To avoid doubt, nothing in this section imposes an obligation on the offender to satisfy the Court that a claim of public interest immunity should not be upheld.
Note: The offender may seek to access any information, material or facts that are likely to be protected by public interest immunity (for example, through a subpoena). Under the law of public interest immunity, the person claiming the immunity must make and substantiate the claim, and satisfy the Court that the claim should be upheld.
105A.14D Information excluded from application and material—terrorism material
(1) This section applies if:
(a) the AFP Minister, or a legal representative of the AFP Minister, (the applicant) is required to give a copy of an application or material to a terrorist offender, or a terrorist offender’s legal representative, under subsection 105A.14A(2) or (3); and
(b) the application or material contains other material (terrorism material) that:
(i) advocates support for engaging in any terrorist acts or violent extremism; or
(ii) relates to planning or preparing for, or engaging in, any terrorist acts or violent extremism; or
(iii) advocates joining or associating with a terrorist organisation.
(2) The applicant may apply to the Supreme Court of a State or Territory referred to in subsection 105A.14A(1) for an order in relation to the manner in which the terrorism material is to be dealt with.
(3) The Court may make an order in relation to the manner in which the terrorism material is to be dealt with, including that the terrorism material:
(a) be provided to the offender’s legal representative; or
(b) be available for inspection by the offender at specified premises.
105A.15 Giving documents to terrorist offenders who are in custody
(1) A document that is required to be given under this Division to a terrorist offender who is detained in custody is taken to have been given to the offender at the time referred to in paragraph (3)(b) if the document is given to the following person (the recipient):
(a) the legal representative of the offender;
(b) if the offender does not have a legal representative—the chief executive officer (however described) of the prison or other facility in which the offender is detained, or a delegate of the chief executive officer.
(2) The recipient must, as soon as reasonably practicable, give the document to the offender personally.
(3) Once the recipient has done so, he or she must notify the Court and the person who gave the recipient the document, in writing:
(a) that the document has been given to the offender; and
(b) of the day that document was so given.
105A.15A When a terrorist offender is unable to engage a legal representative
(1) This section applies if:
(a) a post‑sentence order proceeding relating to a terrorist offender is before a Supreme Court of a State or Territory; and
(b) the offender, due to circumstances beyond the offender’s control, is unable to engage a legal representative in relation to the proceeding.
(2) The Court may make either or both of the following orders:
(a) an order staying the proceeding for such period and subject to such conditions as the Court thinks fit;
(b) an order requiring the Commonwealth to bear, in accordance with the regulations (if any), all or part of the reasonable costs and expenses of the offender’s legal representation for the proceeding.
(3) The regulations may prescribe matters that the Court may, must or must not take into account in determining either or both of the following:
(a) whether circumstances are beyond the offender’s control;
(b) reasonable costs and expenses of the offender’s legal representation for the proceeding.
(4) This section does not limit any other power of the Court.
105A.16 Reasons for decisions
A Supreme Court of a State or Territory that makes a post‑sentence order decision in a post‑sentence order proceeding must:
(a) state the reasons for its decision; and
(b) cause those reasons to be entered in the records of the Court; and
(c) cause a copy of any order it made to be provided to each party to the proceeding.
Note: See also subsection 105A.2(2) for when a Court makes a post‑sentence order decision.
105A.17 Right of appeal
(1) An appeal lies to the court of appeal (however described) of a State or Territory if:
(a) the Supreme Court of the State or Territory makes a post‑sentence order decision; and
(b) the court of appeal has jurisdiction to hear appeals from the Supreme Court in relation to civil matters.
(2) The appeal is to be by way of rehearing. In particular, in relation to the appeal, the court of appeal:
(a) subject to this subsection, has all the powers, functions and duties that the Supreme Court has in relation to the relevant post‑sentence order proceedings; and
(c) may receive further evidence as to questions of fact (orally in court, by affidavit or in any other way) if the court of appeal is satisfied that there are special grounds for doing so.
(3) The appeal against the decision of the Supreme Court may be made:
(a) as of right, within 28 days after the day on which the decision was made; or
(b) by leave, within such further time as the court of appeal allows.
(4) The making of the appeal does not stay the operation of the order.
(5) This section does not limit any other right of appeal that exists apart from this section.
105A.18 Consequences of sentences ending or orders ceasing to be in force
(1) This section applies in relation to a post‑sentence order proceeding if:
(a) the proceeding is any of the following:
(i) a proceeding on an application for a post‑sentence order in relation to a terrorist offender;
(ii) an appeal against a decision to dismiss such an application;
(iii) an appeal against a decision to revoke a post‑sentence order in relation to a terrorist offender;
(iv) an appeal against a decision (including in a review of such an order) to specify a particular period for which such an order will be in force;
(v) an appeal against a decision under section 105A.15A to stay a post‑sentence order proceeding in relation to a terrorist offender (including a decision under that section to stay a proceeding for a specified period or to impose a specified condition); and
(b) before the application or appeal is determined (whether before or after the appeal is made) one of the following events occurs:
(i) a sentence of imprisonment referred to in subsection 105A.3A(1) or paragraph 105A.3A(3)(a), (4)(a), (5)(d) or (7)(a) ends;
(ii) a post‑sentence order or interim post‑sentence order in relation to the offender ceases to be in force;
(iia) the interim control order referred to in subparagraph 105A.3A(8)(c)(i) or confirmed control order referred to in subparagraph 105A.3A(8)(c)(ii) in relation to the offender ceases to be in force;
(iii) a post‑sentence order in force in relation to the offender was revoked as referred to in subparagraph (a)(iii) of this subsection.
(2) For the purposes of the post‑sentence order proceeding, the offender is taken to remain a terrorist offender:
(a) who is detained in custody in a prison serving a sentence of imprisonment; or
(b) in relation to whom a post‑sentence order, interim post‑sentence order or control order is in force;
despite the event in subsection (1) occurring.
Power of police officer to detain terrorist offender
(3) If a continuing detention order or interim detention order is in force in relation to the offender at any time after the offender is released as mentioned in paragraph (1)(b):
(a) any police officer may take the offender into custody; and
(b) any police officer may detain the offender;
for the purpose of giving effect to the order.
(4) A police officer, in:
(a) taking the offender into custody; or
(b) detaining the offender;
under subsection (3) has the same powers and obligations as the police officer would have if the police officer were arresting the offender, or detaining the offender, for an offence.
(5) In subsection (4):
offence means:
(a) if the police officer is an AFP member—an offence against a law of the Commonwealth; or
(b) if the police officer is not an AFP member—an offence against a law of the State or Territory of whose police force the police officer is a member.
105A.18AA Persons in non‑prison custody taken to be in the community
A person who is detained in non‑prison custody is, for the purposes of this Part, taken to be in the community.
Subdivision EA—Offences relating to extended supervision orders and interim supervision orders
105A.18A Offence for contravening an extended supervision order or an interim supervision order
(1) A person commits an offence if:
(a) an extended supervision order or an interim supervision order is in force in relation to the person, and not suspended under section 105A.18C; and
(b) the person engages in conduct; and
(c) the conduct contravenes a condition the order imposes; and
(d) if the condition is an exemption condition—there is no exemption in force at the time the conduct is engaged in that exempts the offender from the application of the condition.
Note: A court that is sentencing a person who has been convicted of an offence against this section may be required to warn the person about continuing detention orders and extended supervision orders (see section 105A.23).
Penalty: Imprisonment for 5 years.
(2) A person commits an offence if:
(a) an extended supervision order or an interim supervision order is in force in relation to the person, and not suspended under section 105A.18C; and
(b) the order includes an exemption condition; and
(c) an exemption is in force in relation to the condition; and
(d) a direction is specified in relation to the exemption condition under subparagraph 105A.7C(5)(b)(ii); and
(e) the person engages in conduct; and
(f) the conduct contravenes the direction.
Note: A court that is sentencing a person who has been convicted of an offence against this section may be required to warn the person about continuing detention orders and extended supervision orders (see section 105A.23).
Penalty: Imprisonment for 5 years.
(3) Subsection (1) or (2) does not apply if the contravention of the condition or direction occurs because the person is detained in non‑prison custody.
Note: A defendant bears an evidential burden in relation to the matter in subsection (3). See subsection 13.3(3).
105A.18B Offence relating to monitoring devices
(1) A person commits an offence if:
(a) an extended supervision order or interim supervision order is in force in relation to the person, and not suspended under section 105A.18C; and
(b) the order requires the person to wear a monitoring device; and
(c) the person engages in conduct; and
(d) the conduct results in interference with, or disruption or loss of, a function of the monitoring device or any related monitoring equipment.