Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Act 2021 (131 of 2021)

Schedule 1   Extended supervision orders

Part 1   Main amendments

Criminal Code Act 1995

95   After section 105A.9 of the Criminal Code

Insert:

105A.9A Interim supervision orders

(1) The AFP Minister, or a legal representative of the AFP Minister, may apply to a Supreme Court of a State or Territory for an interim supervision order in relation to a terrorist offender if an application has been made to the Court for an extended supervision order in relation to the offender.

(2) On receiving the application for the interim supervision order, the Court must hold a hearing to determine whether to make the order.

Determining the application

(3) The Court may determine the application by:

(a) making an interim supervision order under subsection (4); or

(b) dismissing the application.

Making an interim supervision order

(4) The Court may make a written order under this subsection, in accordance with sections 105A.7B and 105A.7C, if:

(a) either:

(i) an application is made in accordance with subsection (1) for an interim supervision order in relation to a terrorist offender; or

(ii) an application is made in accordance with section 105A.9 for an interim detention order in relation to a terrorist offender and the Court is not satisfied as mentioned in paragraph 105A.9(2)(b); and

(b) the Court is satisfied that any of the following relating to the offender will end before the application for the continuing detention order or extended supervision order has been determined:

(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);

(ii) the period for which a post-sentence order or interim post-sentence order is in force;

(iii) the period for which 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) is in force; and

(c) the Court is satisfied that there are reasonable grounds for considering that an extended supervision order will be made in relation to the offender; and

(d) the Court is satisfied that there are reasonable grounds for considering that each of the conditions to be imposed on the offender by the order under this subsection is reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the community from the unacceptable risk of the terrorist offender committing a serious Part 5.3 offence.

Note: A series of interim supervision orders can be made in relation to a person (see subsection (8)).

(5) For the purposes of paragraph (4)(d), in determining whether each of the conditions to be 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).

Effect of an interim supervision order

(6) The effect of an interim supervision order is to impose on the offender, for the period the order is in force, conditions contravention of which may be an offence.

Content of order

(7) The order must specify:

(a) that the Court is satisfied of the matters mentioned in paragraphs (4)(b) to (d); and

(b) the matters mentioned in paragraphs 105A.7A(4)(b), (c) and (e); and

(c) the period during which the order is in force, which must be a period of no more than 28 days that the Court is satisfied is reasonably necessary to determine the application for the continuing detention order or extended supervision order.

Note: The order may be suspended during the period that it is in force if the offender is detained in custody in a prison (see section 105A.18C).

(8) The total period of all interim supervision orders made in relation to the offender before the Court makes a decision on the application for the continuing detention order or extended supervision order must not be more than 3 months, unless the Court is satisfied that there are exceptional circumstances.

Subdivision CB - Varying an extended supervision order or interim supervision order

105A.9B Application for variations of extended supervision orders and interim supervision orders

Requirement to apply for variation

(1A) If the AFP Minister is satisfied that a condition in an extended supervision order or interim supervision order in relation to a terrorist offender is no longer reasonably necessary, or reasonably appropriate and adapted, for the purpose of protecting the community from the unacceptable risk of the offender committing a serious Part 5.3 offence, the Minister or a legal representative of the Minister must apply to a Supreme Court of a State or Territory to vary, under section 105A.9C, the order by:

(a) removing the condition; or

(b) varying the condition.

Note 1: The AFP Minister or legal representative may also apply under subsection (1) for other variations of the order, including adding conditions.

Note 2: A copy of the application must be given to the offender under section 105A.14A.

Who may otherwise apply

(1) Any of the following persons (the applicant ) may (subject to subsection (1A)) apply to a Supreme Court of a State or Territory to vary, under section 105A.9C, an extended supervision order or interim supervision order in relation to a terrorist offender, by adding, varying or removing one or more conditions mentioned in section 105A.7B:

(a) the AFP Minister or a legal representative of the AFP Minister;

(b) the terrorist offender or a legal representative of the terrorist offender.

Note: If the application is made by or on behalf of the AFP Minister, a copy of the application must be given to the offender under section 105A.14A.

(2) An application under subsection (1A) or (1) must be made to the Supreme Court of the State or Territory where the offender resides.

Note: See section 100.1 for the definition of reside .

Contents of application

(3) An application under subsection (1A) or (1) must include:

(a) a copy of the conditions as sought to be varied; and

(b) if the applicant is the AFP Minister or a legal representative or the AFP 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 AFP 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 AFP 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 AFP Minister or the terrorist offender) for variations of the order; and

(c) if the applicant is the terrorist offender or a legal representative of the terrorist offender - the outcomes and particulars of all previous applications made under this section by or on behalf of the terrorist offender for variations of the order; and

(d) if a report was obtained under section 105A.18D in relation to the terrorist offender for the purposes of determining whether to apply for the variation - a copy of the report.

(4) If the applicant is the terrorist offender or a legal representative of the terrorist 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 AFP Minister within 2 business days after the application is made.

Adducing additional evidence

(5) 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 AFP Minister;

(b) one or more AFP members;

(c) the terrorist offender;

(d) one or more representatives of the offender.

(6) Subsection (5) does not otherwise limit the power of the Court to control proceedings in relation to an application to vary an extended supervision order.

105A.9C Varying an extended supervision order or interim supervision order (other than by consent)

(1) If an application is made in accordance with subsection 105A.9B(1A) or (1), and subsection (2), to a Supreme Court of a State or Territory to vary an extended supervision order or interim supervision order in relation to a terrorist 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 the unacceptable risk of the offender committing a serious Part 5.3 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 the unacceptable risk of the offender committing a serious Part 5.3 offence.

Note: See section 105A.9E for the terms of a varied extended supervision order or interim 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 105A.1).

(3) The AFP 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 105A.6(4) to (7) apply in relation to the proceedings.

(5) The AFP Minister, the offender, or a legal representative of the AFP Minister or offender, may nominate one or more relevant experts for the purposes of subsection (4).

(6) Subsection (4) does not prevent the AFP Minister, the offender, or a legal representative of the AFP Minister or offender, from calling another relevant expert as a witness in the proceedings.

105A.9D Varying extended supervision order or interim 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 an extended supervision order or interim supervision order in relation to a terrorist offender by varying or removing one or more conditions mentioned in section 105A.7B:

(a) the AFP Minister or a legal representative of the AFP Minister;

(b) the terrorist offender or a legal representative of the terrorist offender.

(2) The application must be made to the Court of the State or Territory where the offender resides.

Note: See section 100.1 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 AFP Minister or a legal representative of the AFP Minister - the offender; or

(ii) if the applicant is the terrorist offender or a legal representative of the terrorist offender - the AFP Minister; and

(b) the variation does not involve adding any conditions to the order; and

(c) the variation is appropriate in the circumstances.

105A.9E Terms of a varied extended supervision order or interim supervision order

An extended supervision order or interim supervision order in relation to a person that is varied under section 105A.9C, 105A.9D or 105A.12A must:

(a) state that the Court is satisfied:

(i) for a variation under subsection 105A.9C(1) or 105A.9D(3) - of the matters mentioned in that subsection; or

(ii) for a variation under section 105A.12A - of the matters mentioned in subsection 105A.12A(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.