(ii) search the offender’s residence or any premises which the offender intends to be the offender’s residence; and
(iii) search any other premises under the offender’s control; and
(iv) seize any item found during those searches, including to allow the item to be examined forensically;
(j) that the offender facilitate access (including by providing passwords or in any other way) to one or more of the following:
(i) electronic equipment or technology;
(ii) any data held within, or accessible from, any electronic equipment or technology;
owned or controlled by the offender, for the purposes of a police officer searching and seizing any such equipment or accessing such data (or both).
Note 1: For paragraphs (b) and (c), restrictions apply to the use of photographs or impressions of fingerprints (see section 395.16).
Note 2: For paragraph (d), see also section 395.17 (obligations relating to monitoring devices).
(8) A power exercised under a condition imposed in accordance with subsection (7) (other than a power to give a direction) may be exercised only if the person exercising the power is satisfied that it is reasonably necessary to do so in order to:
(a) give effect to the order; or
(b) facilitate or monitor compliance with the order.
Access to lawyers
(9) This section does not affect the offender’s right to contact, communicate or associate with the offender’s lawyer unless the offender’s lawyer is a specified individual, or an individual in a specified class of individuals, as mentioned in paragraph (5)(g). If the offender’s lawyer is so specified, the offender may contact, communicate or associate with any other lawyer who is not so specified.
References to work
(10) In subsection (5), a reference to work includes a reference to voluntary work.
395.15 Conditions where exemptions may be granted
(1) A Supreme Court of a State or Territory that makes a community safety supervision order in relation to a serious offender may specify conditions included in the order that are to be exemption conditions.
(2) An exemption condition is a condition specified in the order from which the offender may apply for a temporary exemption.
(3) The Court may make provision in relation to applications for temporary exemptions.
(4) The offender may apply, in writing, to a specified authority for an exemption from an exemption condition. The application must:
(a) include a reason for the exemption; and
(b) comply with any other requirements provided for under subsection (3).
(5) If the offender so applies, the specified authority may:
(a) require further information to be provided by the offender before making a decision in relation to the application; and
(b) either:
(i) grant or refuse the exemption; or
(ii) grant the exemption subject to any reasonable directions specified in writing by the specified authority.
395.16 Treatment of photographs and impressions of fingerprints
(1) A photograph, or an impression of fingerprints, taken of or from a serious offender as mentioned in paragraph 395.14(7)(b) or (c) must be used only for the purpose of ensuring compliance with a community safety supervision order relating to the offender.
(2) The photograph or the impression must be destroyed if:
(a) no community safety supervision order has been in force in relation to the offender for 12 months; and
(b) either:
(i) no proceedings relating to a community safety supervision order relating to the offender were on foot in that 12‑month period; or
(ii) proceedings relating to a community safety supervision order relating to the offender were discontinued or completed within that 12‑month period.
(3) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct contravenes subsection (1).
Penalty: Imprisonment for 2 years.
395.17 Obligations relating to monitoring devices
Additional obligations on serious offender
(1) If the Court imposes a condition under paragraph 395.14(7)(d) in a community safety supervision order that a serious offender wear a monitoring device, then:
(a) the condition must require the offender to wear the monitoring device at all times; and
(b) the order must include the condition referred to in paragraph 395.14(7)(e); and
(c) the order must include a condition that the offender do all of the following:
(i) allow a specified authority to enter the offender’s residence at any reasonable time for any purpose relating to the electronic monitoring of the offender;
(ii) allow a specified authority to install, repair or fit the monitoring device or any related monitoring equipment;
(iii) take the steps specified in the order (if any) and any other reasonable steps to ensure that the monitoring device and any related monitoring equipment are or remain in good working order;
(iv) if the offender becomes aware that the monitoring device and any related monitoring equipment are not in good working order—notify a specified authority as soon as reasonably practicable;
(v) allow a specified authority, police officer or corrective services officer to remove the monitoring device;
(vi) allow a police officer to remove any related monitoring equipment.
Powers of specified authorities and others
(2) After including the condition under paragraph 395.14(7)(d) in the order, the Court must also include in the order an authorisation for:
(a) one or more specified authorities to enter the offender’s residence as specified in the order at any reasonable time for any purpose relating to the electronic monitoring of the offender; and
(b) one or more specified authorities to install, repair or fit the monitoring device and any related monitoring equipment; and
(c) one or more specified authorities or police officers to take the steps specified in the order to ensure that the device and any related monitoring equipment are or remain in good working order; and
(d) one or more specified authorities, police officers or corrective services officers to remove the monitoring device; and
(e) one or more police officers to remove any related monitoring equipment.
(3) If:
(a) a monitoring device is installed on the offender; and
(b) any of the following events occurs:
(i) the condition under paragraph 395.14(7)(d) is removed from the order;
(ii) the order ceases to be in force;
(iii) the offender is detained in custody;
the device and any related monitoring equipment may be removed in accordance with paragraph (2)(d) or (e) even though:
(c) for subparagraph (b)(i) or (ii)—no authorisation under subsection (2) is in force; or
(d) for subparagraph (b)(iii)—the offender is not required to comply with a condition of the order because of section 395.41 or 395.42.
Note: For the definition of detained in custody, see section 395.2.
Powers relating to monitoring devices and related electronic equipment
(4) Before exercising a power referred to in paragraph (2)(a), (b), (d) or (e), or subsection (3), a specified authority, police officer or corrective services officer must inform the offender:
(a) that the device and equipment are to be installed, repaired, fitted or removed (as the case requires); and
(b) of the proposed timing of the taking of the action; and
(c) that the offender may consent to the taking of the action; and
(d) that if consent is not given, reasonable force may be used to take the action, or to enter the offender’s residence in order to take the action.
(5) If the offender does not give consent, reasonable force may be used by a police officer to take the action, or to enter the offender’s residence in order to take the action.
395.18 Copy of a community safety supervision order must be given to serious offender’s lawyer
(1) A copy of a community safety supervision order that is made under section 395.13 in relation to a serious offender must be given to the offender’s lawyer as soon as practicable after being requested by the lawyer.
(2) This section does not entitle the lawyer to request, or be given a copy of, a document other than the order.
Subdivision D—Varying a community safety supervision order
395.19 Application for variations of community safety supervision orders
Requirement to apply for variation
(1) If the Immigration Minister is satisfied that a condition in a community safety supervision order in relation to a serious offender is no longer reasonably necessary, or reasonably appropriate and adapted, for the purpose of protecting the community from serious harm by addressing the unacceptable risk of the offender committing a serious violent or sexual offence, the Immigration Minister or a legal representative of the Immigration Minister must apply to a Supreme Court of a State or Territory to vary, under section 395.20, the order by:
(a) removing the condition; or
(b) varying the condition.
Note 1: The Immigration Minister or legal representative may also apply under subsection (2) for other variations of the order, including adding conditions.
Note 2: A copy of the application must be given to the offender under section 395.29.
Who may otherwise apply
(2) Any of the following persons (the applicant) may (subject to subsection (1)) apply to a Supreme Court of a State or Territory to vary, under section 395.20, a community safety supervision order in relation to a serious offender, by adding, varying or removing one or more conditions mentioned in section 395.14:
(a) the Immigration Minister or a legal representative of the Immigration Minister;
(b) the offender or a legal representative of the offender.
Note: If the application is made by or on behalf of the Immigration Minister, a copy of the application must be given to the offender under section 395.29.
(3) An application under subsection (1) or (2) must be made to the Supreme Court of the State or Territory where the offender resides.
Note: See subsection 395.2(1) for the definition of reside.
Contents of application
(4) An application under subsection (1) or (2) must include:
(a) a copy of the conditions as sought to be varied; and
(b) if the applicant is the Immigration Minister or a legal representative of the Immigration 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 Immigration 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 Immigration 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 Immigration Minister or the offender) for variations of the order; and
(c) if the applicant is the offender or a legal representative of the offender—the outcomes and particulars of all previous applications made under this section by or on behalf of the offender for variations of the order; and
(d) if a report was obtained under section 395.43 in relation to the offender for the purposes of determining whether to apply for the variation—a copy of the report.
(5) If the applicant is the offender or a legal representative of the 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 Immigration Minister within 2 business days after the application is made.
Adducing additional evidence
(6) 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 Immigration Minister;
(b) one or more AFP members;
(c) the offender;
(d) one or more representatives of the offender.
(7) Subsection (6) does not otherwise limit the power of the Court to control proceedings in relation to an application to vary a community safety supervision order.
395.20 Varying a community safety supervision order (other than by consent)
(1) If an application is made in accordance with subsection 395.19(1) or (2), and subsection (2) of this section, to a Supreme Court of a State or Territory to vary a community safety supervision order in relation to a serious 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 serious harm by addressing the unacceptable risk of the offender committing a serious violent or sexual 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 serious harm by addressing the unacceptable risk of the offender committing a serious violent or sexual offence.
Note: See section 395.22 for the terms of a varied community safety 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 395.1).
(3) The Immigration 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 395.9(5) to (9) apply in relation to the proceedings.
(5) The Immigration Minister, the offender, or a legal representative of the Immigration Minister or offender, may nominate one or more relevant experts for the purposes of subsection (4).
(6) Subsection (4) does not prevent the Immigration Minister, the offender, or a legal representative of the Immigration Minister or offender, from calling another relevant expert as a witness in the proceedings.
395.21 Varying community safety 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 a community safety supervision order in relation to a serious offender by varying or removing one or more conditions mentioned in section 395.14:
(a) the Immigration Minister or a legal representative of the Immigration Minister;
(b) the offender or a legal representative of the offender.
(2) The application must be made to the Court of the State or Territory where the offender resides.
Note: See subsection 395.2(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 Immigration Minister or a legal representative of the Immigration Minister—the serious offender; or
(ii) if the applicant is the offender or a legal representative of the offender—the Immigration Minister; and
(b) the variation does not involve adding any conditions to the order; and
(c) the variation is appropriate in the circumstances.
395.22 Terms of a varied community safety supervision order
A community safety supervision order in relation to a person that is varied under section 395.20, 395.21 or 395.26 must:
(a) state that the Court is satisfied:
(i) for a variation under subsection 395.20(1) or 395.21(3)—of the matters mentioned in that subsection; or
(ii) for a variation under section 395.26—of the matters mentioned in subsection 395.26(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 E—Review of community safety order
395.23 Periodic review of community safety order
When application for review must be made
(1) The Immigration Minister, or a legal representative of the Immigration Minister, must, before the end of the period referred to in subsection (2), apply to a Supreme Court of a State or Territory for a review of a community safety order that is in force in relation to a serious offender.
Note: A copy of the application must be given to the offender under section 395.29.
(2) 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 community safety order is suspended under section 395.42 because the offender is detained in custody in a prison—on or before the day the offender’s detention in a prison ends.
(3) Despite subsection (1), an application for a review is not required if an application for a new community safety order in relation to the offender has been made and not withdrawn.
Review must be conducted before end of period
(4) 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 community safety order, see section 395.25.
Where application must be made
(5) The application must be made to the Court of the State or Territory where: