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 C - Making post-sentence orders  

SECTION 105A.7   Making a continuing detention order  

(1)    
A Supreme Court of a State or Territory may make a written order under this subsection if:

(a)    an application is made in accordance with section 105A.5 for a continuing detention order in relation to a terrorist offender; and

(b)    

after having regard to matters in accordance with section 105A.6B , 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; and

(c)    

the Court is satisfied that there is no less restrictive measure available under this Part that would be effective in preventing the unacceptable risk.

Note 1:

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 paragraph (1)(b) of this section (see subsection 105A.6B(3) and section 105A.13 ).

Note 2:

For paragraph (1)(c) , an example of a less restrictive measure that is available under this Part is an extended supervision order. A court can make an extended supervision order under section 105A.7A even if a continuing detention order was applied for (see subsection 105A.6A(1) ).

(2)    

If the Court is not satisfied as mentioned in paragraph (1)(b) or (c) (or both), then the Court must:

(a)    seek the following material from the AFP Minister:

(i) a copy of the proposed conditions that would be sought for an extended supervision order in relation to the offender;

(ii) an explanation as to why each of the proposed conditions should be imposed on the offender;

(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

(b)    consider whether to make an extended supervision order under section 105A.7A in relation to the offender.

Note:

A copy of the material must be given to the terrorist offender under section 105A.14A .

Onus of satisfying Court

(3)    
The AFP Minister bears the onus of satisfying the Court of the matters referred to in paragraphs (1)(b) and (c).

Period of order

(4)    
The order must specify the period during which it is in force.

Note:

The order may be suspended during the period that it is in force if the offender is detained in custody in a prison other than as a result of the order (see section 105A.18C ).

(5)    
The period must be a period of no more than 3 years that the Court is satisfied is reasonably necessary to prevent the unacceptable risk.

Court may make successive continuing detention orders

(6)    
To avoid doubt, subsection (5) does not prevent a Supreme Court of a State or Territory making a continuing detention order in relation to a terrorist offender that begins to be in force immediately after a previous continuing detention order in relation to the offender ceases to be in force.