Criminal Code Act 1995

Schedule - The Criminal Code  

Section 3

CHAPTER 9 - DANGERS TO THE COMMUNITY  

Part 9.10 - Community safety orders  

Division 395 - Community safety orders  

Subdivision D - Varying a community safety supervision order  

SECTION 395.19   Application for variations of community safety supervision orders  
Requirement to apply for variation

(1)    
If the Immigration Minister is satisfied that a condition in a community safety supervision order in relation to a serious offender is no longer reasonably necessary, or reasonably appropriate and adapted, for the purpose of protecting the community from serious harm by addressing the unacceptable risk of the offender committing a serious violent or sexual offence, the Immigration Minister or a legal representative of the Immigration Minister must apply to a Supreme Court of a State or Territory to vary, under section 395.20 , the order by:

(a)    removing the condition; or

(b)    varying the condition.

Note 1:

The Immigration Minister or legal representative may also apply under subsection (2) for other variations of the order, including adding conditions.

Note 2:

A copy of the application must be given to the offender under section 395.29 .

Who may otherwise apply

(2)    
Any of the following persons (the applicant ) may (subject to subsection (1) ) apply to a Supreme Court of a State or Territory to vary, under section 395.20 , a community safety supervision order in relation to a serious offender, by adding, varying or removing one or more conditions mentioned in section 395.14 :

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

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

Note:

If the application is made by or on behalf of the Immigration Minister, a copy of the application must be given to the offender under section 395.29 .

(3)    
An application under subsection (1) or (2) must be made to the Supreme Court of the State or Territory where the offender resides.

Note:

See subsection 395.2(1) for the definition of reside .

Contents of application

(4)    
An application under subsection (1) or (2) must include:

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

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

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

(d)    if a report was obtained under section 395.43 in relation to the offender for the purposes of determining whether to apply for the variation - a copy of the report.

(5)    
If the applicant is the offender or a legal representative of the 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 Immigration Minister within 2 business days after the application is made.

Adducing additional evidence

(6)    
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 Immigration Minister;

(b)    one or more AFP members;

(c)    the offender;

(d)    one or more representatives of the offender.

(7)    
Subsection (6) does not otherwise limit the power of the Court to control proceedings in relation to an application to vary a community safety supervision order.