Commonwealth: Migration and Other Legislation Amendment (Bridging Visas, Serious Offenders and Other Measures) Act 2023 (Cth)

Migration and Other Legislation Amendment (Bridging Visas, Serious Offenders and Other Measures) Act 2023 No. 110, 2023 An Act to amend the law relating to migration, and to protect the Australian community from serious offenders, and for related purposes Contents 1 Short title 2 Commencement 3 Schedules Schedule 1—Amendments relating to bridging visas etc. Migration Act 1958 Schedule 2—Amendments relating to community safety orders Part 1—Amendments Administrative Decisions (Judicial Review) Act 1977 Australian Security Intelligence Organisation Act 1979 Crimes Act 1914 Criminal Code Act 1995 Surveillance Devices Act 2004 Telecommunications (Interception and Access) Act 1979 Part 2—Application provisions Migration and Other Legislation Amendment (Bridging Visas, Serious Offenders and Other Measures) Act 2023 No. 110, 2023 An Act to amend the law relating to migration, and to protect the Australian community from serious offenders, and for related purposes [Assented to 7 December 2023] The Parliament of Australia enacts: 1 Short title This Act is the Migration and Other Legislation Amendment (Bridging Visas, Serious Offenders and Other Measures) Act 2023. 2 Commencement (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms. Commencement information Column 1 Column 2 Column 3 Provisions Commencement Date/Details 1. The whole of this Act The day after this Act receives the Royal Assent. 8 December 2023 Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act. (2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act. 3 Schedules Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms. Schedule 1—Amendments relating to bridging visas etc. Migration Act 1958 1A After section 76A Insert: 76AA Effect of community safety order on visa held by non‑citizen etc. (1) This section applies if: (a) a community safety order is made in relation to a non‑citizen; and (b) the order comes into force at a particular time (the relevant time). Non‑citizen who holds a visa (other than a criminal justice visa) at the relevant time (2) If the non‑citizen holds a visa (other than a criminal justice visa) at the relevant time, then, despite any other provision of this Act or the regulations, the following apply: (a) that visa ceases to be in effect at the relevant time; (b) the non‑citizen is taken, immediately after the relevant time, to have been granted a Subclass 070 (Bridging (Removal Pending)) visa (the BVR visa); (c) the BVR visa is taken to come into effect as soon as it is taken to be granted under paragraph (b). Note: The visa period for the visa mentioned in paragraph (a) ends at the relevant time and the visa period for the BVR visa begins when it is taken to be granted. Non‑citizen who holds a criminal justice visa at the relevant time (3) If: (a) the non‑citizen holds a criminal justice visa at the relevant time; and (b) the criminal justice visa ceases to be in effect at a particular time (the cessation time) during the period in which the community safety order is in force in relation to the non‑citizen; then, despite any other provision of this Act or the regulations, the following apply: (c) the non‑citizen is taken, immediately after the cessation time, to have been granted a Subclass 070 (Bridging (Removal Pending)) visa (the BVR visa); (d) the BVR visa is taken to come into effect as soon as it is taken to be granted under paragraph (c). Note: The visa period for the BVR visa begins when it is taken to be granted. Matters relating to the BVR visa taken to be granted to the non‑citizen (4) Subject to subsections (6) and (7), this Act and the regulations apply, after the commencement of this section, in relation to the BVR visa that is taken to be granted under paragraph (2)(b) or (3)(c) (as the case may be) in the same way as they would apply in relation to a Subclass 070 (Bridging (Removal Pending)) visa granted under the regulations. (5) Without limiting subsection (4), the following provisions of the regulations, as in force at the time the BVR visa is taken to be granted under paragraph (2)(b) or (3)(c) (as the case may be), apply in relation to the BVR visa: (a) a provision specifying when a Subclass 070 (Bridging (Removal Pending)) visa is in effect; (b) a provision prescribing that a Subclass 070 (Bridging (Removal Pending)) visa permits the visa holder to remain in Australia; (c) a provision specifying the conditions to which a Subclass 070 (Bridging (Removal Pending)) visa that is taken to be granted under paragraph (2)(b) or (3)(c) (as the case may be) is subject. (6) The non‑citizen's BVR visa must not be subject to either of the following conditions: (a) a condition requiring the non‑citizen to remain, between certain times of a day, at a particular address for the non‑citizen for the day; (b) a condition requiring the non‑citizen to wear a monitoring device. Minister must not do certain things while the community safety order is in force (7) The Minister must not do either of the following at any time while the community safety order made in relation to the non‑citizen is in force: (a) invite the non‑citizen, for the purposes of the regulations, to apply for another Subclass 070 (Bridging (Removal Pending)) visa; (b) grant (whether or not on application) the non‑citizen another Subclass 070 (Bridging (Removal Pending)) visa under the regulations. Inconsistency between the community safety order and the BVR visa (8) If: (a) the community safety order that is in force in relation to the non‑citizen is a community safety supervision order; and (b) at a particular time, one or more conditions (the supervision order conditions) are imposed on the non‑citizen by the community safety supervision order; and (c) at that time, a condition to which the non‑citizen's BVR visa is subject is inconsistent, in whole or in part, with any of the supervision order conditions; then, despite subsections (4) and (5), the BVR visa is to be taken, at that time, not to be subject to that condition to the extent of any such inconsistency. (9) If: (a) the community safety order made in relation to the non‑citizen is a community safety detention order; and (b) the non‑citizen is unable, at a particular time, to comply with a condition to which the non‑citizen's BVR visa is subject; and (c) the non‑citizen is unable to comply with the condition only because the community safety detention order is in force in relation to the non‑citizen at that time; then, despite subsections (4) and (5), the BVR visa is to be taken, at that time, not to be subject to that condition. (10) Subsections (8) and (9) do not apply at any time while the community safety order made in relation to the non‑citizen is suspended. Definitions (11) In this section: community safety detention order has the same meaning as in Division 395 of the Criminal Code. community safety order means a community safety detention order or a community safety supervision order. community safety supervision order has the same meaning as in Division 395 of the Criminal Code. monitoring device means any electronic device capable of being used to determine or monitor the location of a person or an object or the status of an object. 1 After section 76D Insert: 76DAA Offence relating to requirement not to perform certain work etc. (1) A person commits an offence if: (a) the person holds a Subclass 070 (Bridging (Removal Pending)) visa; and (b) the visa is subject to a condition requiring that the person not perform any work, or participate in any regular organised activity, involving more than incidental contact with another person who is a minor or other vulnerable person; and (c) the person fails to comply with the requirement of the condition. Penalty: 5 years imprisonment or 300 penalty units, or both. (2) Subsection (1) does not apply if the person has a reasonable excuse. Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code). (3) For the purposes of paragraph (1)(b), it does not matter whether the work or activity is for reward or otherwise. 76DAB Offence relating to requirement not to go within certain distance of a school etc. (1) A person commits an offence if: (a) the person holds a Subclass 070 (Bridging (Removal Pending)) visa; and (b) the visa is subject to a condition requiring that the person not go within a particular distance of a school, childcare centre or day care centre; and (c) the person fails to comply with the requirement of the condition. Penalty: 5 years imprisonment or 300 penalty units, or both. (2) Subsection (1) does not apply if the person has a reasonable excuse. Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code). 76DAC Offence relating to requirement not to contact victim of offence etc. (1) A person commits an offence if: (a) the person holds a Subclass 070 (Bridging (Removal Pending)) visa; and (b) the person has been convicted of an offence involving violence or sexual assault; and (c) the visa is subject to a condition requiring that the person not contact or attempt to contact: (i) the victim of the offence; or (ii) a member of the victim's family; and (d) the person fails to comply with the requirement of the condition. Penalty: 5 years imprisonment or 300 penalty units, or both. (2) Subsection (1) does not apply if the person has a reasonable excuse. Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code). (3) Without limiting what may be taken to be a reasonable excuse for the purposes of subsection (2), it is, for the purposes of that subsection, a reasonable excuse for failing to comply with the requirement of the condition if: (a) the person referred to in subparagraph (1)(c)(i) or (ii): (i) is at least 16 years of age; and (ii) voluntarily consents to the contact or attempted contact; and (iii) has capacity to give that consent; or (b) the contact or attempted contact is (or would, but for this Act or the regulations, be) required or authorised by or under a law of the Commonwealth, a State or a Territory. 2 Section 76DA Omit "or 76D", substitute ", 76D, 76DAA, 76DAB or 76DAC". 3 Paragraph 76E(4)(b) Omit "the non‑citizen does not pose a risk to the community", substitute "those conditions are not reasonably necessary for the protection of any part of the Australian community". 4 At the end of Subdivision AF of Division 3 of Part 2 Add: 76F Powers of officers etc. Powers relating to monitoring devices and related monitoring equipment (1) An authorised officer may do all things necessary or convenient to be done for any of the following purposes in relation to a person who is subject to monitoring: (a) installing, fitting, or removing the person's monitoring device or related monitoring equipment for the person's monitoring device; (b) maintaining, repairing or otherwise keeping in good working order the person's monitoring device or related monitoring equipment for the person's monitoring device; (c) operating or using the person's monitoring device or related monitoring equipment for the person's monitoring device; (d) determining or monitoring the location of: (i) the person; or (ii) an object, or the status of an object, that relates to the person; through the operation of a monitoring device or related monitoring equipment. Collection, use and disclosure of information (2) An authorised officer may collect, use, or disclose to any other person, information (including personal information) for any of the following purposes: (a) determining whether a requirement of a condition of a visa held by a person who is subject to monitoring is being, or has been, complied with; (b) determining whether a person who is subject to monitoring has committed an offence against this Act or the regulations; (c) protecting the community in relation to persons who are subject to monitoring; (d) facilitating the location of a person subject to monitoring who is suspected of having failed to comply with a requirement of a condition of a visa held by the person; (e) facilitating the location of a person who is or has been subject to monitoring in the event that either or both of the following apply: (i) there is a real prospect of the removal of the person from Australia becoming practicable in the reasonably foreseeable future; (ii) a visa held by the person ceases to be in effect; (f) facilitating the performance of functions, and exercise of powers, of authorised officers under this Act (including this section) and the regulations in relation to persons who are or have been subject to monitoring. Powers may be exercised despite other laws (3) An authorised officer may exercise a power under subsection (1) or (2) despite any other provision of: (a) this Act or the regulations (other than regulations made for the purposes of subsection (4) of this section); or (b) any other law of the Commonwealth, a State or a Territory (whether written or unwritten). Powers are exercisable subject to regulations (4) An authorised officer's exercise of a power under subsection (1) or (2) is subject to any conditions, restrictions or other limitations that are prescribed by the regulations for the purposes of this subsection. Other powers not limited (5) The conferral of a power on an authorised officer by subsection (1) or (2) does not, by implication, limit any other powers that exist, or existed, for an authorised officer or any other person to do: (a) a thing authorised by either of those subsections; or (b) any other thing. Definitions (6) In this section: authorised officer, when used in subsection (1) or (2), includes: (a) a person who is authorised in writing by the Minister, the Secretary or the Australian Border Force Commissioner for the purposes of that provision; and (b) a person who is included in a class of persons authorised in writing by the Minister, the Secretary or the Australian Border Force Commissioner for the purposes of that provision, including a person who becomes a member of the class after the authorisation is given. Note: This definition does not limit the definition of authorised officer in subsection 5(1). monitoring device has the same meaning as in section 76D. related monitoring equipment, for a monitoring device, has the same meaning as in section 76D. subject to monitoring: a person is subject to monitoring if the person holds a Subclass 070 (Bridging (Removal Pending)) visa that is subject to a condition requiring the person to wear a monitoring device at all times. 5 Application of amendments—new offences Sections 76DAA, 76DAB and 76DAC of the Migration Act 1958, as inserted by this Schedule, apply in relation to the following: (a) a Subclass 070 (Bridging (Removal Pending)) visa granted after the commencement of this item; (b) a Subclass 070 (Bridging (Removal Pending)) visa granted, or taken to have been granted, before the commencement of this item if the visa holder engaged in the conduct after that commencement. 6 Application of amendments—section 76E Section 76E of the Migration Act 1958, as amended by this Schedule, applies in relation to a Subclass 070 (Bridging (Removal Pending)) visa granted after the commencement of this item. 7 Application of amendments—powers of officers etc. (1) Section 76F of the Migration Act 1958, as inserted by this Schedule, applies on and after the commencement of this item in relation to: (a) persons who become subject to monitoring before, on or after that commencement; and (b) monitoring devices and related monitoring equipment installed or fitted before, on or after that commencement. (2) Subsection 76F(2) of the Migration Act 1958, as inserted by this Schedule, applies in relation to the use and disclosure of information on and after the commencement of this item whether the information is collected or otherwise obtained before, on or after that commencement. Schedule 2—Amendments relating to community safety orders Part 1—Amendments Administrative Decisions (Judicial Review) Act 1977 1 After paragraph (dad) of Schedule 1 Insert: (dada) decisions of the Immigration Minister under Division 395 of the Criminal Code; Australian Security Intelligence Organisation Act 1979 2 At the end of subsection 35(2) Add: ; (d) a condition imposed on a person by a community safety supervision order under Division 395 of the Criminal Code (community safety orders); (e) action covered by any of subsections 395.17(2) to (5) of the Criminal Code (actions relating to electronic monitoring). Crimes Act 1914 3 Paragraphs 3ZQU(1)(e) and 3ZZEA(1)(d) Omit "or 105A", substitute ", 105A or 395". 4 After Part IAAB Insert: Part IAABA—Monitoring of compliance with community safety supervision orders etc. 3ZZUHA Simplified outline of this Part This Part affects how Part IAAB operates, so that that Part (with some modifications set out in this Part) also applies in relation to community safety supervision orders made under Division 395 of the Criminal Code. 3ZZUHB Definitions In this Part: community safety supervision order has the same meaning as in Division 395 of the Criminal Code. Part 9.10 object means the protection of the community from serious harm by addressing the unacceptable risk of a serious offender committing a serious violent or sexual offence. serious offender has the same meaning as in Division 395 of the Criminal Code. serious violent or sexual offence has the same meaning as in Division 395 of the Criminal Code. 3ZZUHC Application of Part IAAB to community safety supervision orders (1) Part IAAB (other than section 3ZZJA or 3ZZJB) applies as if: (a) a reference to a Part 5.3 supervisory order included a reference to a community safety supervision order; and (b) a reference to a Part 5.3 object included a reference to a Part 9.10 object. (2) Subsection 3ZZOA(4) applies as if the following paragraph were inserted after paragraph (b) of that subsection: (c) in relation to a community safety supervision order—the possibility that the person has committed, is committing, or will commit, a serious violent or sexual offence; (3) Paragraph 3ZZOA(5)(l) applies as if the following subparagraph were inserted before subparagraph (i) of that paragraph: (ia) a community safety supervision order; or (4) Subsection 3ZZOA(5) applies as if the following paragraph were inserted after paragraph (q) of that subsection: (qa) for a community safety supervision order: (i) specify when the community safety supervision order comes into force; and (ii) specify the end of the period during which the community safety supervision order is in force; and (5) Subsection 3ZZOB(4) applies as if the following paragraph were inserted after paragraph (c) of that subsection: (d) in relation to a community safety supervision order—the possibility that the person has committed, is committing, or will commit, a serious violent or sexual offence; (6) Paragraph 3ZZOB(5)(j) applies as if the following subparagraph were inserted before subparagraph (i) of that paragraph: (ia) a community safety supervision order; or (7) Subsection 3ZZOB(5) applies as if the following paragraph were inserted after paragraph (o) of that subsection: (oa) for a community safety supervision order: (i) specify when the community safety supervision order comes into force; and (ii) specify the end of the period during which the community safety supervision order is in force; and (8) Paragraph 3ZZOD(1)(b) applies as if the following subparagraph were inserted after subparagraph (iii) of that paragraph: (iiia) the community safety supervision order is revoked and no further community safety supervision order is made in relation to the serious offender; Criminal Code Act 1995 5 At the end of Chapter 9 of the Criminal Code Add: Part 9.10—Community safety orders Division 395—Community safety orders Subdivision A—Preliminary 395.1 Object The object of this Division is to protect the community from serious harm by providing that non‑citizens who: (a) pose an unacceptable risk of committing serious violent or sexual offences; and (b) have no real prospect of their removal from Australia becoming practicable in the reasonably foreseeable future; are subject to: (c) a community safety detention order; or (d) a community safety supervision order. 395.2 Definitions (1) In this Division: AFP member means: (a) a member of the Australian Federal Police (within the meaning of the Australian Federal Police Act 1979); or (b) a special member of the Australian Federal Police (within the meaning of that Act). Commonwealth law enforcement officer has the meaning given by Part 7.8. community safety detention order means an order made under subsection 395.12(1). community safety order means a community safety detention order or a community safety supervision order. community safety order decision means: (a) a decision on an application for a community safety order; or (b) a decision on an application to vary a community safety supervision order; or (c) a decision in a review of a community safety order to affirm, revoke or vary the order; or (d) a decision made under section 395.34 (when a serious offender is unable to engage a legal representative). Note: See also subsection (4). community safety order proceeding means a proceeding under Subdivision C, D or E. community safety supervision order means an order made under subsection 395.13(1). detained in custody has the meaning given by subsection (2). detained in custody in a prison has the meaning given by subsection (3). exemption condition has the meaning given by subsection 395.15(2). immigration detention has the same meaning as in the Migration Act 1958. Immigration Minister means the Minister administering the Migration Act 1958. lawyer means a person enrolled as a legal practitioner of a federal court or the Supreme Court of a State or Territory. monitoring device means any electronic device capable of being used to determine or monitor the location of a person or an object or the status of an object. Note: See also the definition of related monitoring equipment in this subsection. non‑citizen means a person who is not an Australian citizen. personal information has the same meaning as in the Privacy Act 1988. police officer means: (a) an AFP member; or (b) a member (however described) of a police force of a State or Territory. premises includes a place, an aircraft, a vehicle and a vessel. prison includes any gaol, lock‑up or remand centre. related monitoring equipment, in relation to a monitoring device, means any electronic equipment necessary for operating the monitoring device. relevant expert means any of the following persons who is competent to assess the risk of a serious offender committing a serious violent or sexual offence: (a) a person who is: (i) registered as a medical practitioner under a law of a State or Territory; and (ii) a fellow of the Royal Australian and New Zealand College of Psychiatrists; (b) any other person registered as a medical practitioner under a law of a State or Territory; (c) a person registered as a psychologist under a law of a State or Territory; (d) any other expert. reside includes reside temporarily. residence includes temporary residence. senior AFP member means: (a) the Commissioner of the Australian Federal Police; or (b) a Deputy Commissioner of the Australian Federal Police; or (c) an AFP member of, or above, the rank of Superintendent. serious foreign violent or sexual offence means an offence against a law of a foreign country, or of part of a foreign country, where: (a) it is an offence punishable by imprisonment for life or for a period, or maximum period, of at least 7 years; and (b) it is constituted by conduct that, if engaged in in Australia, would constitute an offence against a law of the Commonwealth, a State or a Territory; and (c) the particular conduct constituting the offence involved, involves or would involve, as the case requires: (i) loss of a person's life or serious risk of loss of a person's life; or (ii) serious personal injury or serious risk of serious personal injury; or (iii) sexual assault; or (iv) sexual assault involving a person under 16; or (v) the production, publication, possession, supply or sale of, or other dealing in, child abuse material (within the meaning of Part 10.6); or (vi) consenting to or procuring the employment of a child, or employing a child, in connection with material referred to in subparagraph (v); or (vii) acts done in preparation for, or to facilitate, the commission of a sexual offence against a person under 16. serious offender has the meaning given by subsections 395.5(1) and (2). Note: This definition is affected by section 395.37. serious violent or sexual offence means an offence against a law of the Commonwealth, a State or a Territory where: (a) it is an offence punishable by imprisonment for life or for a period, or maximum period, of at least 7 years; and (b) the particular conduct constituting the offence involved, involves or would involve, as the case requires: (i) loss of a person's life or serious risk of loss of a person's life; or (ii) serious personal injury or serious risk of serious personal injury; or (iii) sexual assault; or (iv) sexual assault involving a person under 16; or (v) the production, publication, possession, supply or sale of, or other dealing in, child abuse material (within the meaning of Part 10.6); or (vi) consenting to or procuring the employment of a child, or employing a child, in connection with material referred to in subparagraph (v); or (vii) acts done in preparation for, or to facilitate, the commission of a sexual offence against a person under 16. specified authority: a person, or person in a class of persons, is a specified authority for a requirement or condition in a community safety supervision order in relation to another person (the subject) if: (a) the person or class is any of the following: (i) a police officer, or class of police officer; (ii) if the requirement or condition relates to electronic monitoring—a person, or class of person, who is involved in electronically monitoring the subject; (iii) for any requirement or condition in the order—any other person, or class of person; and (b) the Court making the order is satisfied that the person or class is appropriate in relation to the requirement or condition; and (c) the person or class is specified in the order. Definition of detained in custody etc. (2) A person is detained in custody if the person is detained in custody under a law of the Commonwealth, a State or a Territory. (3) A person is detained in custody in a prison if the person is detained in custody in a gaol, lock‑up or remand centre, including under a community safety detention order. However, a person is not detained in custody in a prison if the person is in immigration detention in a gaol, lock‑up or remand centre. When a decision is made (4) To avoid doubt, a decision on an application to a Supreme Court of a State or Territory for a community safety order is not made until the Court determines the application in accordance with section 395.10. 395.3 Concurrent operation intended This Division is not intended to exclude or limit the concurrent operation of any law of a State or Territory. 395.4 Regulations may modify operation of this Division to deal with interaction between this Division and State and Territory laws (1) The regulations may modify the operation of this Division so that: (a) provisions of this Division do not apply to a matter that is dealt with by a law of a State or Territory specified in the regulations; or (b) no inconsistency arises between the operation of a provision of this Division and the operation of a State or Territory law specified in the regulations. (2) Without limiting subsection (1), regulations made for the purposes of that subsection may provide that the provision of this Division does not apply to: (a) a person specified in the regulations; or (b) a body specified in the regulations; or (c) circumstances specified in the regulations; or (d) a person or body specified in the regulations in the circumstances specified in the regulations. (3) In this section: matter includes act, omission, body, person or thing. Subdivision B—Community safety orders 395.5 Who a community safety order may apply to and effect of community safety orders (1) A community safety order may be made under section 395.12 or 395.13 in relation to a person (the serious offender) if: (a) the person has been convicted of a serious violent or sexual offence; and (b) the person is a non‑citizen; and (c) there is no real prospect of removal of the person from Australia becoming practicable in the reasonably foreseeable future; and (d) a subsection of section 395.6 provides that the order may be made in relation to the person; and (e) the person is at least 18 years old. Note: Before making the order, a Court must be satisfied of certain matters under section 395.12 or 395.13. (2) A community safety order may be made under section 395.12 or 395.13 in relation to a person (the serious offender) if: (a) the person has been convicted of a serious foreign violent or sexual offence; and (b) the person is a non‑citizen; and (c) there is no real prospect of removal of the person from Australia becoming practicable in the reasonably foreseeable future; and (d) a subsection of section 395.6 provides that the order may be made in relation to the person; and (e) the person is at least 18 years old. Note: Before making the order, a Court must be satisfied of certain matters under section 395.12 or 395.13. Effect of community safety detention order (3) The effect of a community safety detention order is to commit the person to detention in a prison for the period the order is in force. Note 1: The period must not be more than 3 years (see subsection 395.12(5)). Note 2: See also: (a) section 395.41 (detention under the Migration Act 1958); and (b) section 395.42 (effect of prison detention on community safety order); and (c) subsection 395.47(2) (arrangements with States and Territories); and (d) section 395.50 (effect of community safety detention orders on bail or parole laws). Effect of a community safety supervision order (4) The effect of a community safety supervision order is to impose on the person, for the period the order is in force, conditions contravention of which is an offence. Note 1: The period must not be more than 3 years (see paragraph 395.13(5)(d)). Note 2: See also sections 395.41 (detention under the Migration Act 1958) and 395.42 (effect of prison detention on community safety order). 395.6 Preconditions for community safety orders Person is detained in custody in a prison (1) A community safety order may be made in relation to a person if the person is detained in custody in a prison serving: (a) a sentence of imprisonment for a serious violent or sexual offence; or (b) a sentence of imprisonment for any other offence. Person is in the community (2) A community safety order may be made in relation to a person if the person is in the community. Community safety detention order is in force (3) A community safety order may be made in relation to a person if a community safety detention order is in force in relation to the person. 395.7 Treatment of a serious offender in a prison under a community safety detention order (1) A serious offender who is detained in custody in a prison under a community safety detention order must be treated in a way that is appropriate to the offender's status as a person who is not serving a sentence of imprisonment, subject to any reasonable requirements necessary to maintain: (a) the management, security or good order of the prison; and (b) the safe custody or welfare of the offender or any prisoners; and (c) the safety and protection of the community. (2) The offender must not be accommodated or detained in the same area or unit of the prison as persons who are in prison for the purpose of serving sentences of imprisonment unless: (a) it is reasonably necessary for the purposes of rehabilitation, treatment, work, education, general socialisation or other group activities; or (b) it is necessary for the security or good order of the prison or the safe custody or welfare of the offender or prisoners; or (c) it is necessary for the safety and protection of the community; or (d) the offender elects to be so accommodated or detained. (3) This section does not apply if the offender is serving a sentence of imprisonment. Subdivision C—Making community safety orders 395.8 Applying for a community safety order (1) The Immigration Minister, or a legal representative of the Immigration Minister, (the applicant) may apply to a Supreme Court of a State or Territory for either of the following: (a) a community safety detention order in relation to a serious offender; (b) a community safety supervision order in relation to a serious offender. Note: The court may make a community safety supervision order under section 395.13 even if a community safety detention order is applied for. (2) 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: (a) if the application is for a community safety detention order—neither a community safety detention order nor a community safety supervision order should be made in relation to the offender; or (b) if the application is for a community safety supervision order—the community safety supervision order should not be made in relation to the offender. Content of application (3) The application must: (a) include any report or other document that the applicant intends, at the time of the application, to rely on in relation to the application; and (b) include: (i) a copy of any material in the possession of the applicant; and (ii) a statement of any facts that the applicant is aware of; that would reasonably be regarded as supporting a finding that the order or orders mentioned in paragraph (2)(a) or (b) (as the case requires) should not be made, except any information, material or 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) include information about the offender's age; and (d) if the offender is a holder under the Migration Act 1958 of a visa that is subject to one or more conditions—specify the conditions; and (e) request that the order be in force for a specified period; and (f) if the application is for a community safety supervision order—include the following material: (i) a copy of the proposed conditions; (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); (iv) if the offender is subject to an order under a law of a State or Territory that is equivalent to a community safety order—a copy of that order; and (g) if a report was obtained under section 395.43 in relation to the offender—include a copy of the report. Note 1: For paragraph (3)(e), the period must not be more than 3 years (see subsection 395.12(5) and paragraph 395.13(5)(d)). Note 2: Evidence may also be adduced later under section 395.28. Note 3: A copy of the application must be given to the serious offender under section 395.29. 395.9 Appointment of and assessment by relevant expert (1) If an application for a community safety order is made under section 395.8 to a Supreme Court of a State or Territory in relation to a serious offender, the Court must hold a preliminary hearing to determine whether to appoint one or more relevant experts. (2) The hearing must be held within 28 days after a copy of the application is given to the offender under subsection 395.29(2). (3) The Court may, either at the preliminary hearing or at any later time in the proceeding, appoint one or more relevant experts if the Court considers that doing so is likely to materially assist the Court in deciding whether to make a community safety order in relation to the offender. (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) The relevant expert who is appointed must: (a) conduct an assessment of the risk of the offender committing a serious violent or sexual offence; and (b) provide a report of the expert's assessment to the Court, the Immigration Minister and the offender. Note: For giving documents to a serious offender who is detained in custody, see section 395.33. Attendance and participation at assessment (6) The offender must attend the assessment. Note: The assessment may be conducted over a number of sessions. (7) The answer to a question or information given at the assessment, and answering a question or giving information at the assessment, are not admissible in evidence against the offender in: (a) any criminal proceedings, except any proceedings relating to sentencing for an offence against this Division (including any appeal in relation to those proceedings); or (b) any civil proceedings against the offender, except proceedings under this Division (including any appeal in relation to those proceedings). (8) The Court must ensure that the effect of subsections (6), (7) and (11) is explained to the offender. Contents of report (9) The expert's report may include any one or more of the following matters: (a) the expert's assessment of the risk of the offender committing a serious violent or sexual offence; (b) reasons for that assessment; (c) the pattern or progression to date of behaviour on the part of the offender in relation to serious violent or sexual offences, and an indication of the nature of any likely future behaviour on the offender's part in relation to serious violent or sexual offences; (d) efforts made to date by the offender to address the causes of the offender's behaviour in relation to serious violent or sexual offences, including whether the offender has actively participated in any rehabilitation or treatment programs; (e) if the offender has participated in any rehabilitation or treatment programs—whether or not this participation has had a positive effect on the offender; (f) any relevant background of the offender, including developmental and social factors; (g) factors that might increase or decrease any risks that have been identified of the offender committing a serious violent or sexual offence; (h) any other matters the expert considers relevant. Other relevant experts (10) This section 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 proceeding. Assessments conducted for certain purposes (11) Without limiting subsection (7), an assessment of an offender conducted under paragraph (5)(a), and the report of the assessment, may be taken into account in proceedings to make, vary or review any community safety order in relation to the offender. 395.10 Determining an application for a community safety order Determining applications for community safety detention orders (1) If an application is made under section 395.8 to the Supreme Court of a State or Territory for a community safety detention order in relation to a serious offender, the Court may determine the application by: (a) making a community safety detention order under section 395.12; or (b) making a community safety supervision order under section 395.13; or (c) dismissing the application. Determining applications for community safety supervision orders (2) If an application is made under section 395.8 to the Supreme Court of a State or Territory for a community safety supervision order in relation to a serious offender, the Court may determine the application by: (a) making a community safety supervision order under section 395.13; or (b) dismissing the application. 395.11 Matters a Court must have regard to in making a community safety order (1) In deciding whether the Court is satisfied as referred to in paragraph 395.12(1)(b) or 395.13(1)(b) in relation to a serious offender, a Supreme Court of a State or Territory must have regard to the following matters: (a) the object of this Division; (b) any report of an assessment received from a relevant expert, and the level of the offender's participation in the assessment, under: (i) section 395.9; or (ii) section 395.43; (c) the results of any other assessment conducted by a relevant expert of the risk of the offender committing a serious violent or sexual offence, and the level of the offender's participation in any such assessment; (d) any report, relating to the extent to which the offender can reasonably and practicably be managed in the community, that has been prepared by: (i) the relevant State or Territory corrective services; or (ii) any other person or body who is competent to assess that extent; (e) any treatment or rehabilitation programs in which the offender has had an opportunity to participate, and the level of the offender's participation in any such programs; (f) the level of the offender's compliance with any obligations to which the offender is or has been subject while: (i) on release on parole for any serious violent or sexual offence; or (ii) subject to a community safety order; (g) the level of the offender's compliance with any conditions to which a visa that the offender is, or has been, a holder of under the Migration Act 1958 is or has been subject; (h) the offender's history of any prior convictions for, and findings of guilt made in relation to, any serious violent or sexual offence; (i) if information is available about the offender's history of any prior convictions for, and findings of guilt made in relation to, any serious foreign violent or sexual offence—that information; (j) the views of the sentencing court at the time any sentence for any serious violent or sexual offence was imposed on the offender; (k) if information is available about the views of the sentencing court at the time any sentence for any serious foreign violent or sexual offence was imposed on the offender—that information; (l) whether the offender is subject to any order under a law of a State or Territory that is equivalent to a community safety order, and if so, the conditions of the order; (m) any other information as to the risk of the offender committing a serious violent or sexual offence. (2) Subsection (1) does not prevent the Court from having regard to any other matter the Court considers relevant. (3) To avoid doubt, section 395.27 (civil evidence and procedure rules in relation to community safety order proceedings) applies to the Court's consideration of the matters referred to in subsections (1) and (2) of this section. 395.12 Making a community safety 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 395.8 for a community safety detention order in relation to a serious offender; and (b) 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 (c) 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 (d) 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. Note 1: 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). Note 2: 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)). (2) 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: (a) 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 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 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 (b) consider whether to make a community safety supervision order under section 395.13 in relation to the offender. Note: A copy of the material must be given to the serious offender under section 395.29. Onus of satisfying Court (3) The Immigration Minister bears the onus of satisfying the Court of the matters referred to in paragraphs (1)(b), (c) and (d). 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 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). (5) 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. Court may make successive community safety detention orders (6) 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. 395.13 Making a community safety supervision order (1) 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: (a) any of the following applies: (i) an application is made in accordance with section 395.8 for a community safety supervision order in relation to a serious offender; (ii) 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); (iii) 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 (b) 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 (c) 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 (d) the Court is satisfied on the balance of probabilities that: (i) each of the conditions; and (ii) the combined effect of all of the conditions; to be imposed on the offender by the order is reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the community from serious harm by addressing the unacceptable risk. Determining whether conditions are reasonably necessary, appropriate and adapted (2) 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). (3) 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. Onus of satisfying Court (4) The Immigration Minister bears the onus of satisfying the Court of: (a) the matters referred to in paragraphs (1)(b) and (d); and (b) if paragraph (1)(c) applies—the matters referred to in paragraph (1)(c). Content of order (5) The order must: (a) state that the Court is satisfied of: (i) the matters mentioned in paragraphs (1)(b) and (d); and (ii) if paragraph (1)(c) applies—the matters mentioned in paragraph (1)(c); and (b) specify the name of the offender to whom the order relates; and (c) 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 (d) 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 (e) state that the offender's lawyer may request a copy of the order. Note: 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). Court may make successive community safety supervision orders (6) 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. Automatic revocation of community safety detention orders etc. (7) A community safety detention order that is in force in relation to a serious offender is revoked by force of this subsection if: (a) a Court makes a community safety supervision order in relation to the offender; and (b) the community safety detention order is in force immediately before the community safety supervision order begins to be in force. 395.14 Conditions of community safety supervision orders (1) The conditions that a Court may impose on a serious offender by a community safety supervision order are: (a) any conditions that the Court is satisfied; and (b) those conditions whose combined effect the Court is satisfied; on the balance of probabilities, are reasonably necessary, and 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. Note: The Court may, under section 395.15, specify conditions from which exemptions may be granted. (2) If the offender is subject to an order under a law of a State or Territory that is equivalent to a community safety order, the Court must consider the conditions under that State or Territory order in imposing conditions in accordance with subsection (1). General rules about conditions (3) To avoid doubt, without limiting subsection 33(3A) of the Acts Interpretation Act 1901, a condition imposed under this section may: (a) prohibit or restrict specified conduct of the offender, or impose obligations on the offender; or (b) impose restrictions and obligations on the offender in relation to classes of conduct, and prohibit other classes of that conduct; or (c) impose different restrictions, obligations and prohibitions in relation to different classes of conduct; or (d) for conduct that is prohibited by a condition described in a paragraph of subsection (5) of this section—impose restrictions and obligations on the offender in relation to that conduct instead of prohibiting that conduct; or (e) for conduct described in a paragraph of subsection (5) or (7) of this section—impose different restrictions, obligations and prohibitions in relation to that conduct. (4) A condition imposed under this section must not require the offender to remain at specified premises for more than 12 hours within any 24 hours. General conditions (5) Without limiting this section, the conditions that the Court may impose in accordance with subsection (1) include conditions relating to the following: (a) that the offender not be present at one or more of the following: (i) specified areas or places; (ii) specified classes of areas or places; (iii) any area or place determined by a specified authority; (b) that the offender reside at specified premises, and not begin to reside at any other premises without the prior permission of a specified authority; (c) that the offender remain at specified premises between specified times each day, or on specified days, subject to subsection (4); (d) that the offender not leave the State or Territory in which the offender's residence is located; (e) that the offender not change the offender's name, or use any name that is not specified in the order; (f) that the offender not apply for any licence to operate equipment, machinery, a heavy vehicle or a weapon, or any licence to possess a weapon; (g) that the offender not communicate or associate by any means (including through third parties) with one or more of the following: (i) specified individuals; (ii) specified classes of individuals; (iii) any individuals determined by a specified authority; (h) that the offender not access or use specified forms of telecommunication or other technology (including the internet); (i) that the offender not possess or use specified articles or substances; (j) that the offender not carry out specified activities; (k) that the offender not engage in one or more of the following: (i) specified work; (ii) specified classes of work; (iii) specified activities relating to specified work or classes of work; (l) that the offender not in engage in any training or education without the prior permission of a specified authority; (m) that the offender do any or all of the following: (i) attend and participate in treatment, rehabilitation or intervention programs or activities; (ii) undertake psychological or psychiatric assessment or counselling; as specified in the order or as directed by a specified authority; (n) that the offender attend and participate in interviews and assessments (including for the purposes of paragraph (m)) as specified in the order or as directed by a specified authority; (o) that the offender allow the results of the interviews and assessments referred to in paragraph (n), and any other specified information, to be disclosed to a specified authority; (p) that the offender provide specified information to a specified authority within a specified period or before a specified event; (q) that the offender comply with any reasonable direction given to the offender by a specified authority in relation to any specified condition (whether or not the condition is imposed in accordance with this subsection). Note: See also subsection (10) and section 395.2 in relation to references to premises, reside or residence, and work. (6) If a condition of the order authorises a specified authority to give a direction, the specified authority may give a direction only if the specified authority is satisfied that the direction is reasonable in all the circumstances to give effect to: (a) the condition; or (b) the object of this Division (see section 395.1). Conditions relating to monitoring and enforcement (7) Without limiting this section, the conditions that the Court may impose in accordance with subsection (1) include conditions relating to the following: (a) that the offender submit to testing by a specified authority in relation to the possession or use of specified articles or substances; (b) that the offender allow the offender to be photographed by a specified authority; (c) that the offender allow impressions of the offender's fingerprints to be taken by a specified authority; (d) that the offender be subject to electronic monitoring (for example, by wearing a monitoring device at all times), and comply with directions given by a specified authority in relation to electronic monitoring; (e) a condition that: (i) the person carry at all times a specified mobile phone; and (ii) the person be available to answer any call from a specified authority or, as soon as reasonably practicable, return a call that the person was unable to answer; and (iii) the person comply with specified directions, or any directions given by a specified authority, in relation to the condition in subparagraph (i) or (ii); (f) that the offender attend at places, and report to persons, at times, specified: (i) in the order; or (ii) by a specified authority; (g) that the offender allow visits at specified premises from, and entry to specified premises by, a specified authority at any time for the purpose of ensuring the offender's compliance with a condition imposed in accordance with paragraph (5)(c); (h) that the offender provide a specified authority with a schedule setting out the offender's proposed movements for a specified period and comply with that schedule during the period; (i) that the offender allow any police officer to enter specified premises and: (i) search the offender; and (ii) search the offender's residence or any premises which the offender intends to be the offender's residence; and (iii) search any other premises under the offender's control; and (iv) seize any item found during those searches, including to allow the item to be examined forensically; (j) that the offender facilitate access (including by providing passwords or in any other way) to one or more of the following: (i) electronic equipment or technology; (ii) any data held within, or accessible from, any electronic equipment or technology; owned or controlled by the offender, for the purposes of a police officer searching and seizing any such equipment or accessing such data (or both). Note 1: For paragraphs (b) and (c), restrictions apply to the use of photographs or impressions of fingerprints (see section 395.16). Note 2: For paragraph (d), see also section 395.17 (obligations relating to monitoring devices). (8) A power exercised under a condition imposed in accordance with subsection (7) (other than a power to give a direction) may be exercised only if the person exercising the power is satisfied that it is reasonably necessary to do so in order to: (a) give effect to the order; or (b) facilitate or monitor compliance with the order. Access to lawyers (9) This section does not affect the offender's right to contact, communicate or associate with the offender's lawyer unless the offender's lawyer is a specified individual, or an individual in a specified class of individuals, as mentioned in paragraph (5)(g). If the offender's lawyer is so specified, the offender may contact, communicate or associate with any other lawyer who is not so specified. References to work (10) In subsection (5), a reference to work includes a reference to voluntary work. 395.15 Conditions where exemptions may be granted (1) A Supreme Court of a State or Territory that makes a community safety supervision order in relation to a serious offender may specify conditions included in the order that are to be exemption conditions. (2) An exemption condition is a condition specified in the order from which the offender may apply for a temporary exemption. (3) The Court may make provision in relation to applications for temporary exemptions. (4) The offender may apply, in writing, to a specified authority for an exemption from an exemption condition. The application must: (a) include a reason for the exemption; and (b) comply with any other requirements provided for under subsection (3). (5) If the offender so applies, the specified authority may: (a) require further information to be provided by the offender before making a decision in relation to the application; and (b) either: (i) grant or refuse the exemption; or (ii) grant the exemption subject to any reasonable directions specified in writing by the specified authority. 395.16 Treatment of photographs and impressions of fingerprints (1) A photograph, or an impression of fingerprints, taken of or from a serious offender as mentioned in paragraph 395.14(7)(b) or (c) must be used only for the purpose of ensuring compliance with a community safety supervision order relating to the offender. (2) The photograph or the impression must be destroyed if: (a) no community safety supervision order has been in force in relation to the offender for 12 months; and (b) either: (i) no proceedings relating to a community safety supervision order relating to the offender were on foot in that 12‑month period; or (ii) proceedings relating to a community safety supervision order relating to the offender were discontinued or completed within that 12‑month period. (3) A person commits an offence if: (a) the person engages in conduct; and (b) the conduct contravenes subsection (1). Penalty: Imprisonment for 2 years. 395.17 Obligations relating to monitoring devices Additional obligations on serious offender (1) If the Court imposes a condition under paragraph 395.14(7)(d) in a community safety supervision order that a serious offender wear a monitoring device, then: (a) the condition must require the offender to wear the monitoring device at all times; and (b) the order must include the condition referred to in paragraph 395.14(7)(e); and (c) the order must include a condition that the offender do all of the following: (i) allow a specified authority to enter the offender's residence at any reasonable time for any purpose relating to the electronic monitoring of the offender; (ii) allow a specified authority to install, repair or fit the monitoring device or any related monitoring equipment; (iii) take the steps specified in the order (if any) and any other reasonable steps to ensure that the monitoring device and any related monitoring equipment are or remain in good working order; (iv) if the offender becomes aware