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 D - Review of continuing detention order  

SECTION 105A.12   Process for reviewing a continuing detention order  

(1)  
This section applies if, under section 105A.10 or 105A.11 , a Supreme Court of a State or Territory reviews a continuing detention order that is in force in relation to a terrorist offender. Parties to the review

(2)  
The parties to the review are:


(a) the AFP 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 105A.6(4) to (7) apply in relation to the review.

(3A)  
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 (3).

(3B)  
Subsection (3) does not prevent the AFP Minister, the offender, or a legal representative of the AFP Minister or offender, from calling his or her own relevant expert as a witness in the review.

Affirming or revoking the order

(4)  
The Court may affirm the order if:


(a) after having regard to the matters referred to in section 105A.8 , the Court is satisfied to a high degree of probability, on the basis of admissible evidence, that the offender poses an unacceptable risk of committing a serious Part 5.3 offence if the offender is released into the community; and


(b) the Court is satisfied that there is no other less restrictive measure that would be effective in preventing the unacceptable risk.

Note 1:

An example of a less restrictive measure is a control order.

Note 2:

The rules of evidence and procedure for civil matters apply when the Court has regard to matters in accordance with section 105A.8 , as referred to in paragraph (4)(a) of this section (see subsection 105A.8(3) and section 105A.13 ).

(5)  
Otherwise, the Court must revoke the order. Onus of satisfying Court

(5A)  
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 affirmed.

(6)  
The AFP Minister bears the onus of satisfying the Court of the matters referred to in subsection (4).

(6A)  
The AFP Minister, or the legal representative of the AFP Minister, must present to the Court:


(a) a copy of any material in the possession of the AFP Minister or legal representative; and


(b) a statement of any facts that the AFP Minister or legal representative is aware of;

that would reasonably be regarded as supporting a finding that the order should not be affirmed.

Varying the period specified by the order

(7)  
The Court must vary the order to specify a shorter period for which the order will be in force if:


(a) the Court affirms the order under subsection (4); but


(b) the Court is not satisfied that the period currently specified is reasonably necessary to prevent the unacceptable risk.

The shorter period must be a period that the Court is satisfied is reasonably necessary to prevent the unacceptable risk.




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