Criminal Code Act 1995
Schedule
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The Criminal Code
Subdivision D
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Review of post-sentence order
SECTION 105A.12
Process for reviewing a post-sentence order
(1)
This section applies if, under section 105A.10 or 105A.11 , a Supreme Court of a State or Territory reviews a post-sentence 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 (including affirm the order with variations made under section 105A.12A ) if, after having regard to the matters in section 105A.6B , the Court is satisfied that the Court: (a) for a continuing detention order - could have made the order under section 105A.7 ; or (b) for an extended supervision order - could have made the order under section 105A.7A , or could have made the order disregarding paragraph 105A.7A(1)(c) .
(5)
If the review is of a continuing detention order, and the Court does not affirm the order under subsection (4) , the Court must: (a) consider making an extended supervision order in relation to the offender under section 105A.7A ; and (b) seek the following material from the AFP Minister:
(5AA)
If the Court does not affirm an extended supervision order under subsection (4) , 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 section 105A.7 or 105A.7A .
(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;
(7)
(Repealed by No 131 of 2021)
Section 3
CHAPTER 5 - THE SECURITY OF THE COMMONWEALTH Part 5.3 - Terrorism Division 105A - Post-sentence orders
View history note
Hide history noteThis section applies if, under section 105A.10 or 105A.11 , a Supreme Court of a State or Territory reviews a post-sentence 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 (including affirm the order with variations made under section 105A.12A ) if, after having regard to the matters in section 105A.6B , the Court is satisfied that the Court: (a) for a continuing detention order - could have made the order under section 105A.7 ; or (b) for an extended supervision order - could have made the order under section 105A.7A , or could have made the order disregarding paragraph 105A.7A(1)(c) .
Note:
The rules of evidence and procedure for civil matters apply when the Court has regard to matters in accordance with section 105A.6B , as referred to in subsection (4) of this section (see subsection 105A.6B(3) and section 105A.13 ).
(5)
If the review is of a continuing detention order, and the Court does not affirm the order under subsection (4) , the Court must: (a) consider making an extended supervision order in relation to the offender under section 105A.7A ; and (b) seek the following material from the AFP Minister:
(i) a copy of the proposed conditions that would be sought for an extended supervision order;
(ii) an explanation as to why each of the proposed conditions should be imposed on the offender;
(c) if the court does not make an extended supervision order in relation to the offender - revoke the continuing detention order.
(iii) if the AFP Minister is aware of any facts relating to why any of those conditions should not be imposed on the offender - 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); and
Note:
If the Court makes an extended supervision order in relation to the offender, the continuing detention order is revoked under subsection 105A.7A(6) .
(5AA)
If the Court does not affirm an extended supervision order under subsection (4) , 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 section 105A.7 or 105A.7A .
(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:
(c) the order should not be affirmed, or should not be affirmed in the terms in which the order is made; or (d) if the court is considering making an extended supervision order under subsection (5) - an extended supervision order should not be made.(7)
(Repealed by No 131 of 2021)
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