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 E - Review of community safety order  

SECTION 395.25   Process for reviewing a community safety order  

(1)    
This section applies if, under section 395.23 or 395.24 , a Supreme Court of a State or Territory reviews a community safety order that is in force in relation to a serious offender.

Parties to the review

(2)    
The parties to the review are:

(a)    the Immigration 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 395.9(5) to (9) apply in relation to the review.

(4)    
The Immigration Minister or the offender, or a legal representative of the Immigration Minister or the offender, may nominate one or more relevant experts for the purposes of subsection (3) .

(5)    
Subsection (3) does not prevent the Immigration Minister or the offender, or a legal representative of the Immigration Minister or the offender, from calling their own relevant expert as a witness in the review.

Affirming or revoking the order

(6)    
The Court may affirm the order (including affirm the order with variations made under section 395.26 ) if, after having regard to the matters in section 395.11 , the Court is satisfied that the Court:

(a)    for a community safety detention order - could have made the order under section 395.12 ; or

(b)    for a community safety supervision order - could have made the order under section 395.13 , or could have made the order disregarding paragraph 395.13(1)(d) .

Note:

The rules of evidence and procedure for civil matters apply when the Court has regard to matters in accordance with section 395.11 , as referred to in this subsection (see subsection 395.11(3) and section 395.27 ).

(7)    
If the review is of a community safety detention order, and the Court does not affirm the order under subsection (6) , the Court must:

(a)    consider making a community safety supervision order in relation to the offender under section 395.13 ; and

(b)    seek the following material from the Immigration Minister:

(i) a copy of the proposed conditions that would be sought for a community safety supervision order;

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

(iii) if the Immigration 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 Immigration Minister or any other person); and

(c)    if the Court does not make a community safety supervision order in relation to the offender - revoke the community safety detention order.

Note:

If the Court makes a community safety supervision order in relation to the offender, the community safety detention order is revoked under subsection 395.13(7) .

(8)    
If the Court does not affirm a community safety supervision order under subsection (6) , the Court must revoke the order.

Onus of satisfying Court

(9)    
The Immigration Minister must ensure that reasonable inquiries are made to ascertain any facts known to any Commonwealth law enforcement officer that would reasonably be regarded as supporting a finding that the order should not be affirmed.

(10)    
The Immigration Minister bears the onus of satisfying the Court of the matters referred to in section 395.12 or 395.13 .

(11)    
The Immigration Minister, or the legal representative of the Immigration Minister, must present to the Court:

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

(b)    a statement of any facts that the Immigration 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 a community safety supervision order under subsection (7) - a community safety supervision order should not be made.