Criminal Code Act 1995

Schedule - The Criminal Code  

Section 3

CHAPTER 5 - THE SECURITY OF THE COMMONWEALTH  

Part 5.3 - Terrorism  

Division 105A - Post-sentence orders  

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

SECTION 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.