Criminal Code Act 1995

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

an application is made in accordance with section 395.8 for a community safety detention order in relation to a serious offender; and

after having regard to matters in accordance with section 395.11, the Court is satisfied to a high degree of probability, on the basis of admissible evidence, that the offender poses an unacceptable risk of seriously harming the community by committing a serious violent or sexual offence; and

the Court is satisfied that there is no less restrictive measure available under this Division that would be effective in protecting the community from serious harm by addressing the unacceptable risk; and

in a case where the offender is a holder under the Migration Act 1958 of a visa that is subject to conditions—the Court is satisfied that the conditions would not be effective in protecting the community from serious harm by addressing the unacceptable risk.

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 paragraph (1)(b) of this section (see subsection 395.11(3) and section 395.27).

For paragraph (1)(c), an example of a less restrictive measure that is available under this Division is a community safety supervision order. A Court can make a community safety supervision order under section 395.13 even if a community safety detention order was applied for (see subsection 395.10(1)).

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

seek the following material from the Immigration Minister:

a copy of the proposed conditions that would be sought for a community safety supervision order in relation to the offender;

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

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

consider whether to make a community safety supervision order under section 395.13 in relation to the offender.

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

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

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

The order may be suspended during the period that it is in force if the offender is detained under the Migration Act 1958 (see section 395.41) or detained in custody in a prison other than as a result of the order (see section 395.42).

The period must be a period of no more than 3 years that the Court is satisfied is reasonably necessary to protect the community from serious harm by addressing the unacceptable risk.

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