Criminal Code Act 1995

Schedule - The Criminal Code  

Section 3

CHAPTER 5 - THE SECURITY OF THE COMMONWEALTH  

Part 5.3 - Terrorism  

Division 105A - Continuing detention orders  

Subdivision C - Making a continuing detention order  

SECTION 105A.5   Applying for a continuing detention order  

(1)  
The AFP Minister, or a legal representative of the AFP Minister, (the applicant ) may apply to a Supreme Court of a State or Territory for a continuing detention order in relation to a terrorist offender.

(2)  
However, the application may not be made more than 12 months before the end of:


(a) a sentence of imprisonment referred to in subparagraph 105A.3(1)(b)(i) that the offender is serving, at the end of which the offender would be required to be released into the community; or


(b) if a continuing detention order is in force in relation to the offender - the period for which the order is in force.

(2A)  
The AFP Minister must ensure that reasonable inquiries are made to ascertain any facts known to any Commonwealth law enforcement officer or intelligence or security officer that would reasonably be regarded as supporting a finding that the order should not be made.

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


(aa) 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 should not be made; and


(b) include information about the offender ' s age; and


(c) request that the order be in force for a specified period.

Note 1:

The period must not be more than 3 years (see subsection 105A.7(5) ).

Note 2:

Evidence may also be adduced later under section 105A.14 .

Giving offender copy of application

(4)  
The applicant must, subject to subsection (5), give a copy of the application to the offender personally within 2 business days after the application is made.

Note:

For giving the offender documents, see section 105A.15 .

(5)  
The applicant is not required to give to the offender, when the applicant gives the copy of the application to the offender under subsection (4), any information included in the application if a Minister (the decision-maker ) is likely to take any of the following actions in relation to the information:


(a) give a certificate under Subdivision C of Division 2 of Part 3A of the National Security Information (Criminal and Civil Proceedings) Act 2004 ;


(b) seek an arrangement under section 38B of that Act;


(d) seek an order of the Court preventing or limiting disclosure of the information.

(6)  
However, the applicant must give the offender personally a complete copy of the application:


(a) if the decision maker later decides not to take any of the actions referred to in any of paragraphs (5)(a) to (d), or after the decision maker takes such action the Court makes an order - within 2 business days of the decision maker ' s decision or the order (as the case requires); and


(b) in any case - within a reasonable period before the preliminary hearing referred to in section 105A.6 .

Note:

For giving the offender documents, see section 105A.15 .




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