Criminal Code Act 1995

A Supreme Court of a State or Territory may make a written order under this subsection, in accordance with sections 395.14 and 395.15, if:

any of the following applies:

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

an application is made in accordance with section 395.8 for a community safety detention order in relation to a serious offender, and the Court is not satisfied as mentioned in paragraph 395.12(1)(b) or (c) (or both), but is satisfied as mentioned in paragraph 395.12(1)(d);

the Court has reviewed under section 395.25 a community safety detention order in relation to a serious offender and the Court is not satisfied as mentioned in paragraph 395.25(6)(a); and

after having regard to matters in accordance with section 395.11, the Court is satisfied on the balance of probabilities, 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

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; and

the Court is satisfied on the balance of probabilities that:

each of the conditions; and

the combined effect of all of the conditions;

For the purposes of paragraph (1)(d), in determining whether each of the conditions to be imposed on the offender by the order is reasonably necessary, and reasonably appropriate and adapted, the Court must take into account, as a paramount consideration in all cases, the object of this Division (see section 395.1).

If the coming into effect of the order would result in the offender being taken to be granted a visa under section 76AA of the Migration Act 1958, then, for the purposes of paragraph (1)(d) of this section, in determining whether each of the conditions to be imposed on the offender by the order is reasonably necessary, and reasonably appropriate and adapted, the Court must take into account the conditions to which the visa would be subject.

The Immigration Minister bears the onus of satisfying the Court of:

the matters referred to in paragraphs (1)(b) and (d); and

if paragraph (1)(c) applies—the matters referred to in paragraph (1)(c).

The order must:

state that the Court is satisfied of:

the matters mentioned in paragraphs (1)(b) and (d); and

if paragraph (1)(c) applies—the matters mentioned in paragraph (1)(c); and

specify the name of the offender to whom the order relates; and

specify all of the conditions, and any exemption conditions, that are to be imposed in accordance with section 395.14 or 395.15 on the offender by the order; and

specify the period during which the order is to be in force, which 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; and

state that the offender’s lawyer may request a copy of the order.

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 (see section 395.42).

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

A community safety detention order that is in force in relation to a serious offender is revoked by force of this subsection if:

a Court makes a community safety supervision order in relation to the offender; and

the community safety detention order is in force immediately before the community safety supervision order begins to be in force.