(c) an AFP member of, or above, the rank of Superintendent.
serious foreign violent or sexual offence means an offence against a law of a foreign country, or of part of a foreign country, where:
(a) it is an offence punishable by imprisonment for life or for a period, or maximum period, of at least 7 years; and
(b) it is constituted by conduct that, if engaged in in Australia, would constitute an offence against a law of the Commonwealth, a State or a Territory; and
(c) the particular conduct constituting the offence involved, involves or would involve, as the case requires:
(i) loss of a person’s life or serious risk of loss of a person’s life; or
(ii) serious personal injury or serious risk of serious personal injury; or
(iii) sexual assault; or
(iv) sexual assault involving a person under 16; or
(v) the production, publication, possession, supply or sale of, or other dealing in, child abuse material (within the meaning of Part 10.6); or
(vi) consenting to or procuring the employment of a child, or employing a child, in connection with material referred to in subparagraph (v); or
(vii) acts done in preparation for, or to facilitate, the commission of a sexual offence against a person under 16.
serious offender has the meaning given by subsections 395.5(1) and (2).
Note: This definition is affected by section 395.37.
serious violent or sexual offence means an offence against a law of the Commonwealth, a State or a Territory where:
(a) it is an offence punishable by imprisonment for life or for a period, or maximum period, of at least 7 years; and
(b) the particular conduct constituting the offence involved, involves or would involve, as the case requires:
(i) loss of a person’s life or serious risk of loss of a person’s life; or
(ii) serious personal injury or serious risk of serious personal injury; or
(iii) sexual assault; or
(iv) sexual assault involving a person under 16; or
(v) the production, publication, possession, supply or sale of, or other dealing in, child abuse material (within the meaning of Part 10.6); or
(vi) consenting to or procuring the employment of a child, or employing a child, in connection with material referred to in subparagraph (v); or
(vii) acts done in preparation for, or to facilitate, the commission of a sexual offence against a person under 16.
specified authority: a person, or person in a class of persons, is a specified authority for a requirement or condition in a community safety supervision order in relation to another person (the subject) if:
(ii) if the requirement or condition relates to electronic monitoring—a person, or class of person, who is involved in electronically monitoring the subject;
(iii) for any requirement or condition in the order—any other person, or class of person; and
(b) the Court making the order is satisfied that the person or class is appropriate in relation to the requirement or condition; and
(c) the person or class is specified in the order.
Definition of detained in custody etc.
(2) A person is detained in custody if the person is detained in custody under a law of the Commonwealth, a State or a Territory.
(3) A person is detained in custody in a prison if the person is detained in custody in a gaol, lock‑up or remand centre, including under a community safety detention order. However, a person is not detained in custody in a prison if the person is in immigration detention in a gaol, lock‑up or remand centre.
When a decision is made
(4) To avoid doubt, a decision on an application to a Supreme Court of a State or Territory for a community safety order is not made until the Court determines the application in accordance with section 395.10.
395.3 Concurrent operation intended
This Division is not intended to exclude or limit the concurrent operation of any law of a State or Territory.
395.4 Regulations may modify operation of this Division to deal with interaction between this Division and State and Territory laws
(1) The regulations may modify the operation of this Division so that:
(a) provisions of this Division do not apply to a matter that is dealt with by a law of a State or Territory specified in the regulations; or
(b) no inconsistency arises between the operation of a provision of this Division and the operation of a State or Territory law specified in the regulations.
(2) Without limiting subsection (1), regulations made for the purposes of that subsection may provide that the provision of this Division does not apply to:
(a) a person specified in the regulations; or
(b) a body specified in the regulations; or
(c) circumstances specified in the regulations; or
(d) a person or body specified in the regulations in the circumstances specified in the regulations.
(3) In this section:
matter includes act, omission, body, person or thing.
Subdivision B—Community safety orders
395.5 Who a community safety order may apply to and effect of community safety orders
(1) A community safety order may be made under section 395.12 or 395.13 in relation to a person (the serious offender) if:
(a) the person has been convicted of a serious violent or sexual offence; and
(b) the person is a non‑citizen; and
(c) there is no real prospect of removal of the person from Australia becoming practicable in the reasonably foreseeable future; and
(d) a subsection of section 395.6 provides that the order may be made in relation to the person; and
(e) the person is at least 18 years old.
Note: Before making the order, a Court must be satisfied of certain matters under section 395.12 or 395.13.
(2) A community safety order may be made under section 395.12 or 395.13 in relation to a person (the serious offender) if:
(a) the person has been convicted of a serious foreign violent or sexual offence; and
(b) the person is a non‑citizen; and
(c) there is no real prospect of removal of the person from Australia becoming practicable in the reasonably foreseeable future; and
(d) a subsection of section 395.6 provides that the order may be made in relation to the person; and
(e) the person is at least 18 years old.
Note: Before making the order, a Court must be satisfied of certain matters under section 395.12 or 395.13.
Effect of community safety detention order
(3) The effect of a community safety detention order is to commit the person to detention in a prison for the period the order is in force.
Note 1: The period must not be more than 3 years (see subsection 395.12(5)).
Note 2: See also:
(a) section 395.41 (detention under the Migration Act 1958); and
(b) section 395.42 (effect of prison detention on community safety order); and
(c) subsection 395.47(2) (arrangements with States and Territories); and
(d) section 395.50 (effect of community safety detention orders on bail or parole laws).
Effect of a community safety supervision order
(4) The effect of a community safety supervision order is to impose on the person, for the period the order is in force, conditions contravention of which is an offence.
Note 1: The period must not be more than 3 years (see paragraph 395.13(5)(d)).
Note 2: See also sections 395.41 (detention under the Migration Act 1958) and 395.42 (effect of prison detention on community safety order).
395.6 Preconditions for community safety orders
Person is detained in custody in a prison
(1) A community safety order may be made in relation to a person if the person is detained in custody in a prison serving:
(a) a sentence of imprisonment for a serious violent or sexual offence; or
(b) a sentence of imprisonment for any other offence.
Person is in the community
(2) A community safety order may be made in relation to a person if the person is in the community.
Community safety detention order is in force
(3) A community safety order may be made in relation to a person if a community safety detention order is in force in relation to the person.
395.7 Treatment of a serious offender in a prison under a community safety detention order
(1) A serious offender who is detained in custody in a prison under a community safety detention order must be treated in a way that is appropriate to the offender’s status as a person who is not serving a sentence of imprisonment, subject to any reasonable requirements necessary to maintain:
(a) the management, security or good order of the prison; and
(b) the safe custody or welfare of the offender or any prisoners; and
(c) the safety and protection of the community.
(2) The offender must not be accommodated or detained in the same area or unit of the prison as persons who are in prison for the purpose of serving sentences of imprisonment unless:
(a) it is reasonably necessary for the purposes of rehabilitation, treatment, work, education, general socialisation or other group activities; or
(b) it is necessary for the security or good order of the prison or the safe custody or welfare of the offender or prisoners; or
(c) it is necessary for the safety and protection of the community; or
(d) the offender elects to be so accommodated or detained.
(3) This section does not apply if the offender is serving a sentence of imprisonment.
Subdivision C—Making community safety orders
395.8 Applying for a community safety order
(1) The Immigration Minister, or a legal representative of the Immigration Minister, (the applicant) may apply to a Supreme Court of a State or Territory for either of the following:
(a) a community safety detention order in relation to a serious offender;
(b) a community safety supervision order in relation to a serious offender.
Note: The court may make a community safety supervision order under section 395.13 even if a community safety detention order is applied for.
(2) The Immigration Minister must ensure that reasonable inquiries are made to ascertain any facts known to any Commonwealth law enforcement officer that would reasonably be regarded as supporting a finding that:
(a) if the application is for a community safety detention order—neither a community safety detention order nor a community safety supervision order should be made in relation to the offender; or
(b) if the application is for a community safety supervision order—the community safety supervision order should not be made in relation to the offender.
Content of application
(3) The application must:
(a) include any report or other document that the applicant intends, at the time of the application, to rely on in relation to the application; and
(b) include:
(i) a copy of any material in the possession of the applicant; and
(ii) a statement of any facts that the applicant is aware of;
that would reasonably be regarded as supporting a finding that the order or orders mentioned in paragraph (2)(a) or (b) (as the case requires) should not be made, except any information, material or facts that are likely to be protected by public interest immunity (whether the claim for public interest immunity is to be made by the Immigration Minister or any other person); and
(c) include information about the offender’s age; and
(d) if the offender is a holder under the Migration Act 1958 of a visa that is subject to one or more conditions—specify the conditions; and
(e) request that the order be in force for a specified period; and
(f) if the application is for a community safety supervision order—include the following material:
(i) a copy of the proposed conditions;
(ii) an explanation as to why each of the proposed conditions should be imposed on the offender;
(iii) if the Immigration 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 Immigration Minister or any other person);
(iv) if the offender is subject to an order under a law of a State or Territory that is equivalent to a community safety order—a copy of that order; and
(g) if a report was obtained under section 395.43 in relation to the offender—include a copy of the report.
Note 1: For paragraph (3)(e), the period must not be more than 3 years (see subsection 395.12(5) and paragraph 395.13(5)(d)).
Note 2: Evidence may also be adduced later under section 395.28.
Note 3: A copy of the application must be given to the serious offender under section 395.29.
395.9 Appointment of and assessment by relevant expert
(1) If an application for a community safety order is made under section 395.8 to a Supreme Court of a State or Territory in relation to a serious offender, the Court must hold a preliminary hearing to determine whether to appoint one or more relevant experts.
(2) The hearing must be held within 28 days after a copy of the application is given to the offender under subsection 395.29(2).
(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 community safety order in relation to the offender.
(4) The Immigration Minister or the offender, or a legal representative of the Immigration Minister or the offender, may nominate one or more relevant experts for the purposes of subsection (3).
(5) The relevant expert who is appointed must:
(a) conduct an assessment of the risk of the offender committing a serious violent or sexual offence; and
(b) provide a report of the expert’s assessment to the Court, the Immigration Minister and the offender.
Note: For giving documents to a serious offender who is detained in custody, see section 395.33.
Attendance and participation at assessment
(6) The offender must attend the assessment.
Note: The assessment may be conducted over a number of sessions.
(7) 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 this Division (including any appeal in relation to those proceedings); or
(b) any civil proceedings against the offender, except proceedings under this Division (including any appeal in relation to those proceedings).
(8) The Court must ensure that the effect of subsections (6), (7) and (11) is explained to the offender.
Contents of report
(9) 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 violent or sexual 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 violent or sexual offences, and an indication of the nature of any likely future behaviour on the offender’s part in relation to serious violent or sexual offences;
(d) efforts made to date by the offender to address the causes of the offender’s behaviour in relation to serious violent or sexual offences, including whether the offender 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 the offender;
(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 violent or sexual offence;
(h) any other matters the expert considers relevant.
Other relevant experts
(10) This section does not prevent the Immigration Minister or the offender, or a legal representative of the Immigration Minister or the offender, from calling their own relevant expert as a witness in the proceeding.
Assessments conducted for certain purposes
(11) Without limiting subsection (7), an assessment of an offender conducted under paragraph (5)(a), and the report of the assessment, may be taken into account in proceedings to make, vary or review any community safety order in relation to the offender.
395.10 Determining an application for a community safety order
Determining applications for community safety detention orders
(1) If an application is made under section 395.8 to the Supreme Court of a State or Territory for a community safety detention order in relation to a serious offender, the Court may determine the application by:
(a) making a community safety detention order under section 395.12; or
(b) making a community safety supervision order under section 395.13; or
(c) dismissing the application.
Determining applications for community safety supervision orders
(2) If an application is made under section 395.8 to the Supreme Court of a State or Territory for a community safety supervision order in relation to a serious offender, the Court may determine the application by:
(a) making a community safety supervision order under section 395.13; or
(b) dismissing the application.
395.11 Matters a Court must have regard to in making a community safety order
(1) In deciding whether the Court is satisfied as referred to in paragraph 395.12(1)(b) or 395.13(1)(b) in relation to a serious 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: