(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 395.2(4) for when a Court makes a community safety order decision.
395.36 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 community safety 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 community safety order proceedings; and
(b) 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.
395.37 Consequences of sentences ending or orders ceasing to be in force
(1) This section applies in relation to a community safety order proceeding if:
(a) the proceeding is any of the following:
(i) a proceeding on an application for a community safety order in relation to a serious offender;
(ii) an appeal against a decision to dismiss such an application;
(iii) an appeal against a decision to revoke a community safety order in relation to a serious 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 395.34 to stay a community safety order proceeding in relation to a serious 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 395.6(1) ends;
(ii) a community safety order in relation to the offender ceases to be in force;
(iii) a community safety 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 community safety order proceeding, the offender is taken to remain a serious offender:
(a) who is serving a sentence of imprisonment; or
(b) in relation to whom a community safety order is in force;
despite the event in subsection (1) occurring.
Power of police officer to detain serious offender
(3) If a community safety 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.
Subdivision G—Offences relating to community safety supervision orders
395.38 Offence for contravening a community safety supervision order
(1) A person commits an offence if:
(a) a community safety supervision order is in force in relation to the person, and not suspended under section 395.41 or 395.42; 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 person from the application of the condition.
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
(2) A person commits an offence if:
(a) a community safety supervision order is in force in relation to the person, and not suspended under section 395.41 or 395.42; 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 395.15(5)(b)(ii); and
(e) the person engages in conduct; and
(f) the conduct contravenes the direction.
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
(3) Subsections (1) and (2) do not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3)).
395.39 Offence relating to monitoring devices
(1) A person commits an offence if:
(a) a community safety supervision order is in force in relation to the person, and not suspended under section 395.41 or 395.42; 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.
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
(2) A person (the perpetrator) commits an offence if:
(a) the perpetrator knows that, or is reckless as to whether, a community safety supervision order is in force in relation to another person; and
(b) the order is not suspended under section 395.41 or 395.42; and
(c) the perpetrator knows that, or is reckless as to whether, the order requires the other person to wear a monitoring device; and
(d) the perpetrator engages in conduct; and
(e) the conduct results in interference with, or disruption or loss of, a function of the monitoring device or any related monitoring equipment.
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
(3) Strict liability applies in relation to paragraph (2)(b).
(4) Subsections (1) and (2) do not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3)).
395.40 Mandatory 1 year imprisonment for offences
If a person is convicted of an offence against section 395.38 or 395.39, the Court must impose a sentence of imprisonment of at least 1 year.
Subdivision H—Miscellaneous
395.41 Detention under the Migration Act 1958
(1) The fact that:
(a) a community safety order is in force in relation to a serious offender; or
(b) a serious offender is detained in accordance with a community safety detention order;
does not prevent the offender being detained under the Migration Act 1958.
Note: For example, the offender may be detained under the Migration Act 1958 if there is a real prospect of the removal of the offender from Australia becoming practicable in the reasonably foreseeable future.
Effect of detention on community safety orders
(2) A community safety detention order in relation to a serious offender is suspended during the period that the offender is detained under the Migration Act 1958.
(3) A community safety supervision order in relation to a serious offender is suspended during the period that the offender is detained under the Migration Act 1958.
Effect of suspension
(4) A community safety order continues to be in force during the period in which the order is suspended under this section.
(5) However, the offender is not required to comply with any condition in a community safety supervision order during the period that the order is suspended.
395.42 Effect of prison detention on community safety order
Effect of prison detention on community safety orders
(1) A community safety detention order in relation to a serious offender is suspended during the period that the offender is detained in custody in a prison other than as a result of the order.
Note: For the definition of detained in custody in a prison, see section 395.2.
(2) A community safety supervision order in relation to a serious offender is suspended during the period that the offender is detained in custody in a prison.
Effect of suspension
(3) A community safety order continues to be in force during the period in which the order is suspended under this section.
(4) However, the offender is not required to comply with any condition in a community safety supervision order during the period that the order is suspended.
395.43 Immigration Minister may direct serious offenders to be assessed
(1) The Immigration Minister may direct any of the following serious offenders to be subject to an assessment of the risk of the person committing a serious violent or sexual offence:
(a) a serious offender in relation to whom an application for a community safety order could be made;
(b) a serious offender in relation to whom a community safety order is in force.
(2) The Immigration Minister may appoint a relevant expert to conduct the assessment, and provide a report, for the purposes of determining whether:
(a) an application for a community safety order in relation to the offender should be made; or
(b) an application for a variation or review of a community safety order in relation to the offender should be made.
(3) 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 Immigration Minister.
Note: For giving documents to a serious offender who is detained in custody, see section 395.33.
Attendance and participation at assessment
(4) The offender must attend the assessment.
Note: The assessment may be conducted over a number of sessions.
(5) 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).
(6) The Immigration Minister must ensure that the effect of subsections (4), (5) and (8) is explained to the offender.
Contents of report
(7) 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.
Assessments conducted for certain purposes
(8) Without limiting subsection (5), an assessment of an offender conducted under paragraph (3)(a), and the report of the assessment, may be taken into account:
(a) by the Immigration Minister in determining whether to make any application for a community safety order, or any application for a variation or review of a community safety order, in relation to the offender; and
(b) by the Court in proceedings to make, vary or review any community safety order in relation to the offender.
395.44 Sharing information
Requesting information
(1) The Immigration Minister may request a person prescribed by the regulations for the purposes of this subsection to give the Immigration Minister information (including personal information) that the Immigration Minister reasonably believes to be relevant to the administration or execution of this Division.
(2) The request need not be in writing.
(3) Despite any law of the Commonwealth, a State or a Territory (whether written or unwritten), the person may provide the information to the Immigration Minister.
Disclosing information
(4) The Immigration Minister may disclose information to a person prescribed by the regulations for the purposes of this subsection if:
(a) the information was acquired by any of the following in the exercise of a power under, or the performance of a function or duty in connection with, this Division:
(i) the Immigration Minister;
(ii) a legal representative of the Immigration Minister;
(iii) the Secretary of the Department administered by the Immigration Minister;
(iv) an APS employee in the Department administered by the Immigration Minister; and
(b) the Immigration Minister reasonably believes that the disclosure is necessary to enable the person to exercise the person’s powers, or to perform the person’s functions or duties; and
(c) if the regulations provide that information may be disclosed to the person only if specified circumstances are met—those circumstances are met.
(5) Subsection (4) applies despite any other law of the Commonwealth, a State or a Territory (whether written or unwritten).
395.45 Sharing information relating to community safety supervision orders
(1) An AFP member may disclose information (including personal information), to a person employed or engaged by a body covered by an arrangement under subsection 395.48(1), for the purpose of facilitating the performance of any functions or the exercise of any powers in relation to community safety supervision orders.
(2) A person (the first person) employed or engaged by a body covered by an arrangement under subsection 395.48(1) may disclose information (including personal information) to another person if the first person reasonably believes that the disclosure is authorised by the arrangement.
(3) This section applies despite any other law of the Commonwealth, a State or a Territory (whether written or unwritten).
395.46 Delegation by the Immigration Minister
The Immigration Minister may, in writing, delegate any of the Immigration Minister’s powers or functions under section 395.44 to any of the following persons:
(a) the Secretary of the Department administered by the Immigration Minister;
(b) any APS employee in that Department who performs duties in connection with the administration or execution of this Division.
395.47 Arrangement with States and Territories
(1) The Immigration Minister may arrange for a serious offender in relation to whom a community safety detention order is in force to be detained in a prison of a State or Territory.
(2) If an arrangement is made under subsection (1), the community safety detention order is taken to authorise the chief executive officer (however described) of the prison to detain the offender in the prison while the order is in force.
395.48 Arrangements by Australian Federal Police Commissioner for functions and powers relating to community safety supervision orders
(1) The Commissioner of the Australian Federal Police may make an arrangement with a State or Territory, or any other body, for the performance of any functions or the exercise of any powers in relation to community safety supervision orders.
(2) Without limiting subsection (1), for the purposes of section 395.45, the arrangement may authorise a person employed or engaged by a body covered by the arrangement to disclose information (including personal information).
(3) The Commissioner of the Australian Federal Police may, in writing, delegate to a senior AFP member the Commissioner’s powers under subsection (1).
395.49 Annual report
(1) The Immigration Minister must, as soon as practicable after each 30 June, cause a report to be prepared about the operation of this Division during the year ended on that 30 June.
(2) Without limiting subsection (1), a report relating to a year must include the number of each of the following:
(a) applications for each kind of community safety order made during the year;
(b) each kind of community safety order made during the year;
(c) applications for review of each kind of community safety order made by serious offenders during the year;
(d) applications for review of each kind of community safety order made by the Immigration Minister, or a legal representative of the Immigration Minister, during the year;
(e) each kind of community safety order affirmed during the year;
(f) each kind of community safety order varied during the year;
(g) community safety orders revoked (including by operation of this Act) during the year.