(a) for a community safety detention order—the prison in which the offender is detained is located; or
(b) for a community safety supervision order—the offender resides.
Note: See subsection 395.2(1) for the definition of reside.
Order ceases to be in force if application not made
(6) 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 (2).
395.24 Review of community safety order on application
(1) The following persons may apply to a Supreme Court of a State or Territory for review of a community safety order:
(a) the Immigration Minister or a legal representative of the Immigration Minister;
(b) a serious offender, or a legal representative of a serious offender, in relation to whom the community safety order is in force.
Note 1: For the process for reviewing a community safety order, see section 395.25.
Note 2: A copy of the application must be given to the serious offender under section 395.29.
(2) The application must include a copy of any report obtained under section 395.43 for the purposes of determining whether an application for a review of the community safety supervision order should be made.
(3) 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.
(4) Otherwise, the Court must dismiss the application.
(5) The application must be made to the Court of the State or Territory where:
(a) for a community safety detention order—the prison in which the offender is detained is located; or
(b) for a community safety supervision order—the offender resides.
Note: See subsection 395.2(1) for the definition of reside.
395.25 Process for reviewing a community safety order
(1) This section applies if, under section 395.23 or 395.24, a Supreme Court of a State or Territory reviews a community safety order that is in force in relation to a serious offender.
Parties to the review
(2) The parties to the review are:
(a) the Immigration 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 395.9(5) to (9) apply in relation to the review.
(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) Subsection (3) 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 review.
Affirming or revoking the order
(6) The Court may affirm the order (including affirm the order with variations made under section 395.26) if, after having regard to the matters in section 395.11, the Court is satisfied that the Court:
(a) for a community safety detention order—could have made the order under section 395.12; or
(b) for a community safety supervision order—could have made the order under section 395.13, or could have made the order disregarding paragraph 395.13(1)(d).
Note: The rules of evidence and procedure for civil matters apply when the Court has regard to matters in accordance with section 395.11, as referred to in this subsection (see subsection 395.11(3) and section 395.27).
(7) If the review is of a community safety detention order, and the Court does not affirm the order under subsection (6), the Court must:
(a) consider making a community safety supervision order in relation to the offender under section 395.13; and
(b) seek the following material from the Immigration Minister:
(i) a copy of the proposed conditions that would be sought for a community safety supervision order;
(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); and
(c) if the Court does not make a community safety supervision order in relation to the offender—revoke the community safety detention order.
Note: If the Court makes a community safety supervision order in relation to the offender, the community safety detention order is revoked under subsection 395.13(7).
(8) If the Court does not affirm a community safety supervision order under subsection (6), the Court must revoke the order.
Onus of satisfying Court
(9) 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 the order should not be affirmed.
(10) The Immigration Minister bears the onus of satisfying the Court of the matters referred to in section 395.12 or 395.13.
(11) The Immigration Minister, or the legal representative of the Immigration Minister, must present to the Court:
(a) a copy of any material in the possession of the Immigration Minister or legal representative; and
(b) a statement of any facts that the Immigration 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 a community safety supervision order under subsection (7)—a community safety supervision order should not be made.
395.26 Varying community safety orders after review
Varying the period specified by a community safety order
(1) A Supreme Court of a State or Territory must vary a community safety order in relation to a serious offender to specify a shorter period for which the order will be in force if:
(a) the Court affirms the order under subsection 395.25(6); and
(b) the Court is not satisfied that the period currently specified is reasonably necessary to protect the community from serious harm by addressing the unacceptable risk of the offender committing a serious violent or sexual offence.
The shorter period must be a period that the Court is satisfied is reasonably necessary to address the unacceptable risk.
Note: See section 395.22 for the terms of a varied community safety supervision order.
Varying or removing conditions
(2) A Supreme Court of a State or Territory must vary, or remove, a condition imposed by a community safety supervision order if:
(a) the Court affirms the order under subsection 395.25(6); 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 serious harm by addressing the unacceptable risk of the offender committing a serious violent or sexual offence.
(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 serious harm by addressing the unacceptable risk of the offender committing a serious violent or sexual offence.
Varying to add conditions
(4) The Court may vary a community safety 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 serious harm by addressing the unacceptable risk of the offender committing a serious violent or sexual 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 395.1).
Onus of satisfying Court
(6) The Immigration Minister bears the onus of satisfying the Court of the matters referred to in subsection (1), (3) or (4).
Subdivision F—Provisions relating to community safety order proceedings
395.27 Civil evidence and procedure rules in relation to community safety 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 community safety 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 serious offender’s compliance with any conditions (however described) to which the offender is or has been subject while:
(i) on release on parole for any offence; or
(ii) subject to a community safety supervision order; and
(b) the offender’s history of any prior convictions for, and findings of guilt made in relation to, any offence; and
(c) the level of the offender’s compliance with any conditions to which a visa that the offender is, or has been, a holder of under the Migration Act 1958 is or has been subject.
395.28 Adducing evidence and making submissions
A party to a community safety 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.
395.29 Giving copies of applications etc. to serious offenders
(1) This section applies if the Immigration Minister, or a legal representative of the Immigration Minister, (the applicant) applies to a Supreme Court of a State or Territory for:
(a) a community safety order; or
(b) a variation of a community safety supervision order under section 395.19; or
(c) a review of a community safety order;
in relation to a serious offender.
(2) Within 2 business days after the application is made, the applicant must (subject to sections 395.30 to 395.32) give a copy of the application to the offender personally, and to the offender’s legal representative.
Note: For giving documents to a serious offender who is detained in custody, see section 395.33.
(3) If the Court seeks material from the Immigration Minister under paragraph 395.12(2)(a) or 395.25(7)(b), within 2 business days after the material is provided to the Court, the applicant must (subject to sections 395.30 to 395.32) give a copy of the material to the offender personally, and to the offender’s legal representative.
(4) If:
(a) the community safety 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 395.30 to 395.32), within 2 business days after the order is made or varied, give to the offender personally, and to the offender’s legal representative, a copy of the order that is made, or of the order as varied.
395.30 Information excluded from application or material—national security information
(1) This section applies if the Immigration Minister, or a legal representative of the Immigration Minister, (the applicant) gives a copy of an application or material to a serious offender, or a serious offender’s legal representative, (the recipient) under subsection 395.29(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:
(a) take 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 community safety order—the preliminary hearing referred to in section 395.9; or
(ii) if the application is for a variation or review of a community safety order—the hearing on the application.
395.31 Information excluded from application or material—public interest immunity
(1) This section applies if:
(a) the Immigration Minister, or a legal representative of the Immigration Minister, (the applicant) gives a copy of an application or material to a serious offender, or a serious offender’s legal representative, under subsection 395.29(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.
395.32 Information excluded from application and material
(1) This section applies if:
(a) the Immigration Minister, or a legal representative of the Immigration Minister, (the applicant) is required to give a copy of an application or material to a serious offender, or a serious offender’s legal representative, under subsection 395.29(2) or (3); and
(b) the application or material contains any of the following material (relevant material):
(i) terrorism material within the meaning of paragraph 105A.14D(1)(b);
(ii) child abuse material within the meaning of Part 10.6;
(iii) abhorrent violent material within the meaning of Subdivision H of Division 474.
(2) The applicant may apply to the Supreme Court of a State or Territory referred to in subsection 395.29(1) for an order in relation to the manner in which the relevant material is to be dealt with.
(3) The Court may make an order in relation to the manner in which the relevant material is to be dealt with, including that the relevant material:
(a) be provided to the offender’s legal representative; or
(b) be available for inspection by the offender at specified premises.
395.33 Giving documents to serious offenders who are detained in custody
(1) A document that is required to be given under this Division to a serious 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, the recipient 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.
395.34 When a serious offender is unable to engage a legal representative
(1) This section applies if:
(a) a community safety order proceeding relating to a serious 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.
395.35 Reasons for decisions
A Supreme Court of a State or Territory that makes a community safety order decision in a community safety order proceeding must: