Migration Amendment (Bridging Visa...: 5 Dec 2023: Senate debates (OpenAustralia.org)

Senate debates

Tuesday, 5 December 2023

Bills

Migration Amendment (Bridging Visa Conditions and Other Measures) Bill 2023; In Committee

4:49 pm

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

I table a supplementary explanatory memorandum relating to the government amendments to be moved to this bill. I seek leave to move government amendments to the Migration Amendment (Bridging Visa Conditions and Other Measures) Bill 2023 on sheet SY101 together.

Leave granted.

I move:

(1) Title, page 1 (line 1), omit "the Migration Act1958", substitute "the law relating to migration, and to protect the Australian community from serious offenders".

(2) Clause 1, page 1 (line 5), omit "Amendment (Bridging Visa Conditions", substitute "and Other Legislation Amendment (Bridging Visas, Serious Offenders".

(3) Schedule 1, heading, page 3 (line 1), after "Amendments", insert "relating to bridging visas etc.".

(4) Schedule 1, page 3 (before line 4), before item 1, insert:

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);

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.

(5) Page 8 (after line 21), at the end of the bill, add:

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:

(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

(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;

(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

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

(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

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

(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

(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

(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

(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

(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

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;

(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.

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

(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 specifiedinformation 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;

(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

(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 that the monitoring device and any related monitoring equipment are not in good working order—notify a specified authority as soon as reasonably practicable;

(v) allow a specified authority, police officer or corrective services officer to remove the monitoring device;

(vi) allow a police officer to remove any related monitoring equipment.

Powers of specified authorities and others

(2) After including the condition under paragraph 395.14(7)(d) in the order, the Court must also include in the order an authorisation for:

(a) one or more specified authorities to enter the offender's residence as specified in the order at any reasonable time for any purpose relating to the electronic monitoring of the offender; and

(b) one or more specified authorities to install, repair or fit the monitoring device and any related monitoring equipment; and

(c) one or more specified authorities or police officersto take the steps specified in the order to ensure that the device and any related monitoring equipment are or remain in good working order; and

(d) one or more specified authorities, police officersor corrective services officers to remove the monitoring device; and

(e) one or more police officers to remove any related monitoring equipment.

(3) If:

(a) a monitoring device is installed on the offender; and

(b) any of the following events occurs:

(i) the condition under paragraph 395.14(7)(d) is removed from the order;

(ii) the order ceases to be in force;

(iii) the offender is detained in custody;

the device and any related monitoring equipment may be removed in accordance with paragraph (2)(d) or (e) even though:

(d) for subparagraph (b)(iii)—the offender is not required to comply with a condition of the order because of section 395.41 or 395.42.

Note: For the definition of detained in custody, see section 395.2.

Powers relating to monitoring devices and related electronic equipment

(4) Before exercising a power referred to in paragraph (2)(a), (b), (d) or (e), or subsection (3), a specified authority, police officer or corrective services officer must inform the offender:

(a) that the device and equipment are to be installed, repaired, fitted or removed (as the case requires); and

(b) of the proposed timing of the taking of the action; and

(d) that if consent is not given, reasonable force may be used to take the action, or to enter the offender's residence in order to take the action.

(5) If the offender does not give consent, reasonable force may be used by a police officer to take the action, or to enter the offender's residence in order to take the action.

395.18 Copy of a community safety supervision order must be given to serious offender's lawyer

(1) A copy of a community safety supervision order that is made under section 395.13 in relation to a serious offender must be given to the offender's lawyer as soon as practicable after being requested by the lawyer.

(2) This section does not entitle the lawyer to request, or be given a copy of, a document other than the order.

Subdivision D — Varying a community safety supervision order

395.19 Application for variations of community safety supervision orders

Requirement to apply for variation

(1) If the Immigration Minister is satisfied that a condition in a community safety supervision order in relation to a serious offender is no longer reasonably necessary, or 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, the Immigration Minister or a legal representative of the Immigration Minister must apply to a Supreme Court of a State or Territory to vary, under section 395.20, the order by:

(a) removing the condition; or

(b) varying the condition.

Note 1: The Immigration Minister or legal representative may also apply under subsection (2) for other variations of the order, including adding conditions.

Note 2: A copy of the application must be given to the offender under section 395.29.

Who may otherwise apply

(2) Any of the following persons (the applicant) may (subject to subsection (1)) apply to a Supreme Court of a State or Territory to vary, under section 395.20, a community safety supervision order in relation to a serious offender, by adding, varying or removing one or more conditions mentioned in section 395.14:

(a) the Immigration Minister or a legal representative of the Immigration Minister;

(b) the offender or a legal representative of the offender.

Note: If the application is made by or on behalf of the Immigration Minister, a copy of the application must be given to the offender under section 395.29.

(3) An application under subsection (1) or (2) must be made to the Supreme Court of the State or Territory where the offender resides.

Note: See subsection 395.2(1) for the definition of reside.

Contents of application

(4) An application under subsection (1) or (2) must include:

(a) a copy of the conditions as sought to be varied; and

(b) if the applicant is the Immigration Minister or a legal representative of the Immigration Minister—the following material:

(i) an explanation as to why each condition that is sought to be added or varied should be added or varied;

(ii) if the Immigration Minister is aware of any facts relating to why any of those conditions should not be added or varied—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);

(iii) the outcomes and particulars of all previous applications made under this section (whether by or on behalf of the Immigration Minister or the offender) for variations of the order; and

(c) if the applicant is the offender or a legal representative of the offender—the outcomes and particulars of all previous applications made under this section by or on behalf of the offender for variations of the order; and

(d) if a report was obtained under section 395.43 in relation to the offender for the purposes of determining whether to apply for the variation—a copy of the report.

(5) If the applicant is the offender or a legal representative of the offender, the applicant:

(a) may also include in the application an explanation as to why each condition that is sought to be varied or removed should be varied or removed; and

(b) must cause a copy of the application to be served on the Immigration Minister within 2 business days after the application is made.

Adducing additional evidence

(6) The following persons may adduce additional evidence (including by calling witnesses or producing material), or make additional submissions, to the Court in relation to the application to vary the order:

(a) the Immigration Minister;

(b) one or more AFP members;

(d) one or more representatives of the offender.

(7) Subsection (6) does not otherwise limit the power of the Court to control proceedings in relation to an application to vary a community safety supervision order.

395.20 Varying a community safety supervision order (other than by consent)

(1) If an application is made in accordance with subsection 395.19(1) or (2), and subsection (2) of this section, to a Supreme Court of a State or Territory to vary a community safety supervision order in relation to a serious offender, the Court may vary the order, but only if:

(a) for an application for the order to be varied by adding or varying conditions—the Court is satisfied on the balance of probabilities that each of the conditions being added or varied is 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; and

(b) for an application for the order to be varied by removing conditions—the Court is not satisfied on the balance of probabilities that each of the conditions being removed is 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: See section 395.22 for the terms of a varied community safety supervision order.

(2) For the purposes of subsection (1), in determining whether each of the conditions to be added, varied or removed 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) The Immigration Minister bears the onus of satisfying the Court of the matters referred to in subsection (1).

Relevant experts

(4) The Court may appoint one or more relevant experts for the purposes of the proceedings relating to the application. If the Court does so, subsections 395.9(5) to (9) apply in relation to the proceedings.

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

(6) Subsection (4) does not prevent the Immigration Minister, the offender, or a legal representative of the Immigration Minister or offender, from calling another relevant expert as a witness in the proceedings.

395.21 Varying community safety supervision order by consent

(1) Any of the following persons (the applicant) may apply to a Supreme Court of a State or Territory to vary a community safety supervision order in relation to a serious offender by varying or removing one or more conditions mentioned in section 395.14:

(a) the Immigration Minister or a legal representative of the Immigration Minister;

(b) the offender or a legal representative of the offender.

(2) The application must be made to the Court of the State or Territory where the offender resides.

Note: See subsection 395.2(1) for the definition of reside.

(3) The Court may vary the order if the Court is satisfied that:

(a) written consent to the variation has been given by:

(i) if the applicant is the Immigration Minister or a legal representative of the Immigration Minister—the serious offender; or

(ii) if the applicant is the offender or a legal representative of the offender—the Immigration Minister; and

(b) the variation does not involve adding any conditions to the order; and

395.22 Terms of a varied community safety supervision order

A community safety supervision order in relation to a person that is varied under section 395.20, 395.21 or 395.26 must:

(a) state that the Court is satisfied:

(i) for a variation under subsection 395.20(1) or 395.21(3)—of the matters mentioned in that subsection; or

(ii) for a variation under section 395.26—of the matters mentioned in subsection 395.26(1), (3) or (4) (as the case requires); and

(b) specify the variations to the conditions that are to be made; and

(d) state that the offender's lawyer may request a copy of the order.

Subdivision E — Review of community safety order

395.23 Periodic review of community safety order

When application for review must be made

(1) The Immigration Minister, or a legal representative of the Immigration Minister, must, before the end of the period referred to in subsection (2), apply to a Supreme Court of a State or Territory for a review of a community safety order that is in force in relation to a serious offender.

Note: A copy of the application must be given to the offender under section 395.29.

(2) The application must be made:

(a) before the end of 12 months after the order began to be in force (unless paragraph (b) or (c) applies); or

(b) if the order has been reviewed under this Subdivision by a Supreme Court of a State or Territory—before the end of 12 months after the most recent review ended (unless paragraph (c) applies); or

(c) if paragraph (a) or (b) would otherwise apply and, at the time described in that paragraph, the community safety order is suspended under section 395.42 because the offender is detained in custody in a prison—on or before the day the offender's detention in a prison ends.

(3) Despite subsection (1), an application for a review is not required if an application for a new community safety order in relation to the offender has been made and not withdrawn.

Review must be conducted before end of period

(4) On receiving the application, the Court must begin the review of the order before the end of that period.

Note: For the process for reviewing a community safety order, see section 395.25.

Where application must be made

(5) The application must be made to the Court of the State or Territory where:

(a) for a community safety detention order—the prison in which the offender is detained is located; or

(b) for a community safety supervision order—the offender resides.

Note: See subsection 395.2(1) for the definition of reside.

Order ceases to be in force if application not made

(6) If an application is not made in accordance with this section, the order ceases to be in force at the end of the period referred to in subsection (2).

395.24 Review of community safety order on application

(1) The following persons may apply to a Supreme Court of a State or Territory for review of a community safety order:

(a) the Immigration Minister or a legal representative of the Immigration Minister;

(b) a serious offender, or a legal representative of a serious offender, in relation to whom the community safety order is in force.

Note 1: For the process for reviewing a community safety order, see section 395.25.

Note 2: A copy of the application must be given to the serious offender under section 395.29.

(2) The application must include a copy of any report obtained under section 395.43 for the purposes of determining whether an application for a review of the community safety supervision order should be made.

(3) The Court may review the order if the Court is satisfied that:

(a) there are new facts or circumstances which would justify reviewing the order; or

(b) it would be in the interests of justice, having regard to the purposes of the order and the manner and effect of its implementation, to review the order.

(4) Otherwise, the Court must dismiss the application.

(5) The application must be made to the Court of the State or Territory where:

(a) for a community safety detention order—the prison in which the offender is detained is located; or

(b) for a community safety supervision order—the offender resides.

Note: See subsection 395.2(1) for the definition of reside.

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;

(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:

(d) if the court is considering making a community safety supervision order under subsection (7)—a community safety supervision order should not be made.

395.26 Varying community safety orders after review

Varying the period specified by a community safety order

(1) A Supreme Court of a State or Territory must vary a community safety order in relation to a serious offender to specify a shorter period for which the order will be in force if:

(a) the Court affirms the order under subsection 395.25(6); and

(b) the Court is not satisfied that the period currently specified is reasonably necessary to protect the community from serious harm by addressing the unacceptable risk of the offender committing a serious violent or sexual offence.

The shorter period must be a period that the Court is satisfied is reasonably necessary to address the unacceptable risk.

Note: See section 395.22 for the terms of a varied community safety supervision order.

Varying or removing conditions

(2) A Supreme Court of a State or Territory must vary, or remove, a condition imposed by a community safety supervision order if:

(a) the Court affirms the order under subsection 395.25(6); and

(b) the Court is not satisfied that the condition is 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.

(3) The Court must be satisfied that a condition that is varied under subsection (2) is (after the variation) 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.

Varying to add conditions

(4) The Court may vary a community safety supervision order to add one or more conditions if the Court is satisfied that the conditions 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.

Object of this Division

(5) For the purposes of subsections (3) and (4), in determining whether a condition to be varied or 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).

Onus of satisfying Court

(6) The Immigration Minister bears the onus of satisfying the Court of the matters referred to in subsection (1), (3) or (4).

Subdivision F — Provisions relating to community safety order proceedings

395.27 Civil evidence and procedure rules in relation to community safety order proceedings

(1) A Supreme Court of a State or Territory must, subject to subsection (2), apply the rules of evidence and procedure for civil matters during a community safety order proceeding.

(2) Despite anything in the rules of evidence and procedure, the Court may receive in evidence in the proceeding evidence of:

(a) the level of the serious offender's compliance with any conditions (however described) to which the offender is or has been subject while:

(i) on release on parole for any offence; or

(ii) subject to a community safety supervision order; and

(b) the offender's history of any prior convictions for, and findings of guilt made in relation to, any offence; and

(c) 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.

395.28 Adducing evidence and making submissions

A party to a community safety order proceeding in a Supreme Court of a State or Territory may adduce evidence (including by calling witnesses or producing material), or make submissions, to the Court in relation to the proceeding.

395.29 Giving copies of applications etc. to serious offenders

(1) This section applies if the Immigration Minister, or a legal representative of the Immigration Minister, (the applicant) applies to a Supreme Court of a State or Territory for:

(a) a community safety order; or

(b) a variation of a community safety supervision order under section 395.19; or

in relation to a serious offender.

(2) Within 2 business days after the application is made, the applicant must (subject to sections 395.30 to 395.32) give a copy of the application to the offender personally, and to the offender's legal representative.

Note: For giving documents to a serious offender who is detained in custody, see section 395.33.

(3) If the Court seeks material from the Immigration Minister under paragraph 395.12(2)(a) or 395.25(7)(b), within 2 business days after the material is provided to the Court, the applicant must (subject to sections 395.30 to 395.32) give a copy of the material to the offender personally, and to the offender's legal representative.

(4) If:

(a) the community safety order is made or varied; and

(b) neither the offender nor a legal representative of the offender is present during the proceedings in which the order is made or varied;

the applicant must (subject to sections 395.30 to 395.32), within 2 business days after the order is made or varied, give to the offender personally, and to the offender's legal representative, a copy of the order that is made, or of the order as varied.

395.30 Information excluded from application or material — national security information

(1) This section applies if the Immigration Minister, or a legal representative of the Immigration Minister, (the applicant) gives a copy of an application or material to a serious offender, or a serious offender's legal representative, (the recipient) under subsection 395.29(2) or (3).

(2) The applicant is not required to include any information in the application or material if a Minister (the decision-maker) is likely to:

(a) take any actions in relation to the information under the National Security Information (Criminal and Civil Proceedings) Act 2004; or

(b) seek an order of a court preventing or limiting disclosure of the information.

(3) However, the applicant must (subject to subsection (4)) give the recipient personally a complete copy of the application or material if any of the following events occurs:

(a) the decision-maker decides not to take any of the actions referred to in paragraph (2)(a) or (b);

(b) a Minister gives a certificate under Subdivision C of Division 2 of Part 3A of the National Security Information (Criminal and Civil Proceedings) Act 2004;

(4) Subsection (3) is subject to:

(a) the certificate referred to in paragraph (3)(b); or

(b) any order made by a court.

(5) The copy of the application or material must be given under subsection (3):

(a) within 2 business days of the event referred to in subsection (3); and

(b) within a reasonable period before:

(i) if the application is for a community safety order—the preliminary hearing referred to in section 395.9; or

(ii) if the application is for a variation or review of a community safety order—the hearing on the application.

395.31 Information excluded from application or material — public interest immunity

(1) This section applies if:

(a) the Immigration Minister, or a legal representative of the Immigration Minister, (the applicant) gives a copy of an application or material to a serious offender, or a serious offender's legal representative, under subsection 395.29(2) or (3); and

(b) information (however described) is excluded from the application or material on the basis of public interest immunity.

(2) The applicant must give written notice to the offender, and the offender's legal representative, personally stating that the information has been excluded on the basis of public interest immunity. The notice must be given at the time that a copy of the application or material is given to the offender or legal representative.

(3) To avoid doubt, nothing in this section imposes an obligation on the offender to satisfy the Court that a claim of public interest immunity should not be upheld.

Note: The offender may seek to access any information, material or facts that are likely to be protected by public interest immunity (for example, through a subpoena). Under the law of public interest immunity, the person claiming the immunity must make and substantiate the claim, and satisfy the Court that the claim should be upheld.

395.32 Information excluded from application and material

(1) This section applies if:

(a) the Immigration Minister, or a legal representative of the Immigration Minister, (the applicant) is required to give a copy of an application or material to a serious offender, or a serious offender's legal representative, under subsection 395.29(2) or (3); and

(b) the application or material contains any of the following material (relevant material):

(i) terrorism material within the meaning of paragraph 105A.14D(1)(b);

(ii) child abuse material within the meaning of Part 10.6;

(iii) abhorrent violent material within the meaning of Subdivision H of Division 474.

(2) The applicant may apply to the Supreme Court of a State or Territory referred to in subsection 395.29(1) for an order in relation to the manner in which the relevant material is to be dealt with.

(3) The Court may make an order in relation to the manner in which the relevant material is to be dealt with, including that the relevant material:

(a) be provided to the offender's legal representative; or

(b) be available for inspection by the offender at specified premises.

395.33 Giving documents to serious offenders who are detained in custody

(1) A document that is required to be given under this Division to a serious offender who is detained in custody is taken to have been given to the offender at the time referred to in paragraph (3)(b) if the document is given to the following person (the recipient):

(a) the legal representative of the offender;

(b) if the offender does not have a legal representative—the chief executive officer (however described) of the prison or other facility in which the offender is detained, or a delegate of the chief executive officer.

(2) The recipient must, as soon as reasonably practicable, give the document to the offender personally.

(3) Once the recipient has done so, the recipient must notify the Court and the person who gave the recipient the document, in writing:

(a) that the document has been given to the offender; and

(b) of the day that document was so given.

395.34 When a serious offender is unable to engage a legal representative

(1) This section applies if:

(a) a community safety order proceeding relating to a serious offender is before a Supreme Court of a State or Territory; and

(b) the offender, due to circumstances beyond the offender's control, is unable to engage a legal representative in relation to the proceeding.

(2) The Court may make either or both of the following orders:

(a) an order staying the proceeding for such period and subject to such conditions as the Court thinks fit;

(b) an order requiring the Commonwealth to bear, in accordance with the regulations (if any), all or part of the reasonable costs and expenses of the offender's legal representation for the proceeding.

(3) The regulations may prescribe matters that the Court may, must or must not take into account in determining either or both of the following:

(a) whether circumstances are beyond the offender's control;

(b) reasonable costs and expenses of the offender's legal representation for the proceeding.

(4) This section does not limit any other power of the Court.

395.35 Reasons for decisions

A Supreme Court of a State or Territory that makes a community safety order decision in a community safety order proceeding must:

(a) state the reasons for its decision; and

(b) cause those reasons to be entered in the records of the Court; and

Note: See also subsection 395.2(4) for when a Court makes a community safety order decision.

395.36 Right of appeal

(1) An appeal lies to the court of appeal (however described) of a State or Territory if:

(a) the Supreme Court of the State or Territory makes a community safety order decision; and

(b) the court of appeal has jurisdiction to hear appeals from the Supreme Court in relation to civil matters.

(2) The appeal is to be by way of rehearing. In particular, in relation to the appeal, the court of appeal:

(a) subject to this subsection, has all the powers, functions and duties that the Supreme Court has in relation to the relevant community safety order proceedings; and

(b) may receive further evidence as to questions of fact (orally in court, by affidavit or in any other way) if the court of appeal is satisfied that there are special grounds for doing so.

(3) The appeal against the decision of the Supreme Court may be made:

(a) as of right, within 28 days after the day on which the decision was made; or

(b) by leave, within such further time as the court of appeal allows.

(4) The making of the appeal does not stay the operation of the order.

(5) This section does not limit any other right of appeal that exists apart from this section.

395.37 Consequences of sentences ending or orders ceasing to be in force

(1) This section applies in relation to a community safety order proceeding if:

(a) the proceeding is any of the following:

(i) a proceeding on an application for a community safety order in relation to a serious offender;

(ii) an appeal against a decision to dismiss such an application;

(iii) an appeal against a decision to revoke a community safety order in relation to a serious offender;

(iv) an appeal against a decision (including in a review of such an order) to specify a particular period for which such an order will be in force;

(v) an appeal against a decision under section 395.34 to stay a community safety order proceeding in relation to a serious offender (including a decision under that section to stay a proceeding for a specified period or to impose a specified condition); and

(b) before the application or appeal is determined (whether before or after the appeal is made) one of the following events occurs:

(i) a sentence of imprisonment referred to in subsection 395.6(1) ends;

(ii) a community safety order in relation to the offender ceases to be in force;

(iii) a community safety order in force in relation to the offender was revoked as referred to in subparagraph (a)(iii) of this subsection.

(2) For the purposes of the community safety order proceeding, the offender is taken to remain a serious offender:

(a) who is serving a sentence of imprisonment; or

(b) in relation to whom a community safety order is in force;

despite the event in subsection (1) occurring.

Power of police officer to detain serious offender

(3) If a community safety detention order is in force in relation to the offender at any time after the offender is released as mentioned in paragraph (1)(b):

(a) any police officer may take the offender into custody; and

(b) any police officer may detain the offender;

for the purpose of giving effect to the order.

(4) A police officer, in:

(a) taking the offender into custody; or

(b) detaining the offender;

under subsection (3) has the same powers and obligations as the police officer would have if the police officer were arresting the offender, or detaining the offender, for an offence.

(5) In subsection (4):

offence means:

(a) if the police officer is an AFP member—an offence against a law of the Commonwealth; or

(b) if the police officer is not an AFP member—an offence against a law of the State or Territory of whose police force the police officer is a member.

Subdivision G — Offences relating to community safety supervision orders

395.38 Offence for contravening a community safety supervision order

(1) A person commits an offence if:

(a) a community safety supervision order is in force in relation to the person, and not suspended under section 395.41 or 395.42; and

(b) the person engages in conduct; and

(d) if the condition is an exemption condition—there is no exemption in force at the time the conduct is engaged in that exempts the person from the application of the condition.

Penalty: Imprisonment for 5 years or 300 penalty units, or both.

(2) A person commits an offence if:

(a) a community safety supervision order is in force in relation to the person, and not suspended under section 395.41 or 395.42; and

(b) the order includes an exemption condition; and

(d) a direction is specified in relation to the exemption condition under subparagraph 395.15(5)(b)(ii); and

(e) the person engages in conduct; and

(f) the conduct contravenes the direction.

Penalty: Imprisonment for 5 years or 300 penalty units, or both.

(3) Subsections (1) and (2) do 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)).

395.39 Offence relating to monitoring devices

(1) A person commits an offence if:

(a) a community safety supervision order is in force in relation to the person, and not suspended under section 395.41 or 395.42; and

(b) the order requires the person to wear a monitoring device; and

(d) the conduct results in interference with, or disruption or loss of, a function of the monitoring device or any related monitoring equipment.

Penalty: Imprisonment for 5 years or 300 penalty units, or both.

(2) A person (the perpetrator) commits an offence if:

(a) the perpetrator knows that, or is reckless as to whether, a community safety supervision order is in force in relation to another person; and

(b) the order is not suspended under section 395.41 or 395.42; and

(c) the perpetrator knows that, or is reckless as to whether, the order requires the other person to wear a monitoring device; and

(d) the perpetrator engages in conduct; and

(e) the conduct results in interference with, or disruption or loss of, a function of the monitoring device or any related monitoring equipment.

Penalty: Imprisonment for 5 years or 300 penalty units, or both.

(3) Strict liability applies in relation to paragraph (2)(b).

(4) Subsections (1) and (2) do 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)).

395.40 Mandatory 1 year imprisonment for offences

If a person is convicted of an offence against section 395.38 or 395.39, the Court must impose a sentence of imprisonment of at least 1 year.

Subdivision H — Miscellaneous

395.41 Detention under the Migration Act 1958

(1) The fact that:

(a) a community safety order is in force in relation to a serious offender; or

(b) a serious offender is detained in accordance with a community safety detention order;

does not prevent the offender being detained under the Migration Act 1958.

Note: For example, the offender may be detained under the Migration Act 1958 if there is a real prospect of the removal of the offender from Australia becoming practicable in the reasonably foreseeable future.

Effect of detention on community safety orders

(2) A community safety detention order in relation to a serious offender is suspended during the period that the offender is detained under the Migration Act 1958.

(3) A community safety supervision order in relation to a serious offender is suspended during the period that the offender is detained under the Migration Act 1958.

Effect of suspension

(4) A community safety order continues to be in force during the period in which the order is suspended under this section.

(5) However, the offender is not required to comply with any condition in a community safety supervision order during the period that the order is suspended.

395.42 Effect of prison detention on community safety order

Effect of prison detention on community safety orders

(1) A community safety detention order in relation to a serious offender is suspended during the period that the offender is detained in custody in a prison other than as a result of the order.

Note: For the definition of detained in custody in a prison, see section 395.2.

(2) A community safety supervision order in relation to a serious offender is suspended during the period that the offender is detained in custody in a prison.

Effect of suspension

(3) A community safety order continues to be in force during the period in which the order is suspended under this section.

(4) However, the offender is not required to comply with any condition in a community safety supervision order during the period that the order is suspended.

395.43 Immigration Minister may direct serious offenders to be assessed

(1) The Immigration Minister may direct any of the following serious offenders to be subject to an assessment of the risk of the person committing a serious violent or sexual offence:

(a) a serious offender in relation to whom an application for a community safety order could be made;

(b) a serious offender in relation to whom a community safety order is in force.

(2) The Immigration Minister may appoint a relevant expert to conduct the assessment, and provide a report, for the purposes of determining whether:

(a) an application for a community safety order in relation to the offender should be made; or

(b) an application for a variation or review of a community safety order in relation to the offender should be made.

(3) 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 Immigration Minister.

Note: For giving documents to a serious offender who is detained in custody, see section 395.33.

Attendance and participation at assessment

(4) The offender must attend the assessment.

Note: The assessment may be conducted over a number of sessions.

(5) 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).

(6) The Immigration Minister must ensure that the effect of subsections (4), (5) and (8) is explained to the offender.

Contents of report

(7) 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;

(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.

Assessments conducted for certain purposes

(8) Without limiting subsection (5), an assessment of an offender conducted under paragraph (3)(a), and the report of the assessment, may be taken into account:

(a) by the Immigration Minister in determining whether to make any application for a community safety order, or any application for a variation or review of a community safety order, in relation to the offender; and

(b) by the Court in proceedings to make, vary or review any community safety order in relation to the offender.

395.44 Sharing information

Requesting information

(1) The Immigration Minister may request a person prescribed by the regulations for the purposes of this subsection to give the Immigration Minister information (including personal information) that the Immigration Minister reasonably believes to be relevant to the administration or execution of this Division.

(2) The request need not be in writing.

(3) Despite any law of the Commonwealth, a State or a Territory (whether written or unwritten), the person may provide the information to the Immigration Minister.

Disclosing information

(4) The Immigration Minister may disclose information to a person prescribed by the regulations for the purposes of this subsection if:

(a) the information was acquired by any of the following in the exercise of a power under, or the performance of a function or duty in connection with, this Division:

(i) the Immigration Minister;

(ii) a legal representative of the Immigration Minister;

(iii) the Secretary of the Department administered by the Immigration Minister;

(iv) an APS employee in the Department administered by the Immigration Minister; and

(b) the Immigration Minister reasonably believes that the disclosure is necessary to enable the person to exercise the person's powers, or to perform the person's functions or duties; and

(c) if the regulations provide that information may be disclosed to the person only if specified circumstances are met—those circumstances are met.

(5) Subsection (4) applies despite any other law of the Commonwealth, a State or a Territory (whether written or unwritten).

395.45 Sharing information relating to community safety supervision orders

(1) An AFP member may disclose information (including personal information), to a person employed or engaged by a body covered by an arrangement under subsection 395.48(1), for the purpose of facilitating the performance of any functions or the exercise of any powers in relation to community safety supervision orders.

(2) A person (the first person) employed or engaged by a body covered by an arrangement under subsection 395.48(1) may disclose information (including personal information) to another person if the first person reasonably believes that the disclosure is authorised by the arrangement.

(3) This section applies despite any other law of the Commonwealth, a State or a Territory (whether written or unwritten).

395.46 Delegation by the Immigration Minister

The Immigration Minister may, in writing, delegate any of the Immigration Minister's powers or functions under section 395.44 to any of the following persons:

(a) the Secretary of the Department administered by the Immigration Minister;

(b) any APS employee in that Department who performs duties in connection with the administration or execution of this Division.

395.47 Arrangement with States and Territories

(1) The Immigration Minister may arrange for a serious offender in relation to whom a community safety detention order is in force to be detained in a prison of a State or Territory.

(2) If an arrangement is made under subsection (1), the community safety detention order is taken to authorise the chief executive officer (however described) of the prison to detain the offender in the prison while the order is in force.

395.48 Arrangements by Australian Federal Police Commissioner for functions and powers relating to community safety supervision orders

(1) The Commissioner of the Australian Federal Police may make an arrangement with a State or Territory, or any other body, for the performance of any functions or the exercise of any powers in relation to community safety supervision orders.

(2) Without limiting subsection (1), for the purposes of section 395.45, the arrangement may authorise a person employed or engaged by a body covered by the arrangement to disclose information (including personal information).

(3) The Commissioner of the Australian Federal Police may, in writing, delegate to a senior AFP member the Commissioner's powers under subsection (1).

395.49 Annual report

(1) The Immigration Minister must, as soon as practicable after each 30 June, cause a report to be prepared about the operation of this Division during the year ended on that 30 June.

(2) Without limiting subsection (1), a report relating to a year must include the number of each of the following:

(a) applications for each kind of community safety order made during the year;

(b) each kind of community safety order made during the year;

(d) applications for review of each kind of community safety order made by the Immigration Minister, or a legal representative of the Immigration Minister, during the year;

(e) each kind of community safety order affirmed during the year;

(f) each kind of community safety order varied during the year;

(g) community safety orders revoked (including by operation of this Act) during the year.

(3) The Immigration Minister must cause copies of the report to be laid before each House of the Parliament within 15 sitting days of that House after the report is completed.

395.50 Effect of community safety detention orders on bail or parole laws

(1) A person in relation to whom a community safety detention order is in force is not eligible to be released on bail or parole until the order ceases to be in force.

(2) Subsection (1) does not prevent the person from applying, before the order ceases to be in force, to be released on bail if the person is charged with an offence while the order is in force.

Note: Although the person can apply to be released on bail, as a result of subsection (1), the person cannot be released on bail until the community safety detention order ceases to be in force.

(3) This section applies despite any law of the Commonwealth, a State or a Territory.

Surveillance Devices Act 2004

6 After paragraph 3(aaf)

Insert:

(aag) to establish procedures for law enforcement officers to obtain warrants for the installation and use of surveillance devices, or for access to data held in computers, in cases where a community safety supervision order is in force, and the use of the device or the access to the data would be likely to substantially assist in:

(i) achieving a Part 9.10 object; or

(ii) determining whether the community safety supervision order, or any succeeding community safety supervision order, has been, or is being, complied with; and

(aah) to establish procedures for law enforcement officers to obtain tracking device authorisations for the use of tracking devices in cases where a community safety supervision order is in force in relation to a person, and the use of a tracking device is to obtain information relating to the person for either of the following purposes:

(i) achieving a Part 9.10 object;

(ii) determining whether the community safety supervision order, or any succeeding community safety supervision order, has been, or is being, complied with; and

7 At the end of section 4

Add:

(7) To avoid doubt, it is intended that a warrant may be issued under this Act for the installation, use, maintenance or retrieval of a surveillance device, or for access to data held in a computer, if:

(a) consideration is being given, will be given, or is likely to be given, as to whether to apply for a Part 9.10 order, and the use of the device or the access to the data would be likely to assist in determining whether to apply for the order; or

(b) a community safety supervision order is in force, and the use of the device or the access to the data would be likely to substantially assist in:

(i) achieving a Part 9.10 object; or

(ii) determining whether the community safety supervision order, or any succeeding community safety supervision order, has been, or is being, complied with.

(8) To avoid doubt, a tracking device authorisation may be given under this Act for the use of a tracking device to obtain information relating to a person if:

(a) a community safety supervision order is in force in relation to the person; and

(b) the use is for either of the following purposes:

(i) achieving a Part 9.10 object;

(ii) determining whether the community safety supervision order, or any succeeding community safety supervision order, has been, or is being, complied with.

8 Subsection 6(1)

Insert:

community safety detention order has the same meaning as in Division 395 of the Criminal Code.

community safety supervision order has the same meaning as in Division 395 of the Criminal Code.

Immigration Minister means the Minister administering the Migration Act 1958.

Part 9.10 information has the meaning given by subsection 50A(6).

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.

Part 9.10 order means a community safety detention order or a community safety supervision order.

Part 9.10 warrant means a surveillance device warrant or computer access warrant:

(a) issued to determine whether to apply for a Part 9.10 order; or

(b) issued in relation to a community safety supervision order that is or was in force.

9 Subsection 6(1) (paragraph (oa) of the definition of relevant proceeding )

After "orders)", insert "or Division 395 of the Criminal Code (community safety orders)".

10 Subsection 6(1)

Insert:

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.

succeeding community safety supervision order has the meaning given by section 6F.

11 Subsection 6(1) (definition of unsworn application )

After "27A(13)", insert ", (13A)".

12 After section 6D

Insert:

6E When a community safety supervision order is taken to be in force

For the purposes of this Act, a community safety supervision order is taken to be in force in relation to a person if the order has been made but the period specified in the order under paragraph 395.13(5)(d) of the Criminal Code has not yet begun.

6F Succeeding community safety supervision order

(1) If a community safety supervision order is made in relation to a person, any later community safety supervision order in relation to the person is a succeeding community safety supervision order in relation to an earlier community safety supervision order.

(2) If 2 or more successive community safety supervision orders are made in relation to the same person, each later community safety supervision order is a succeeding community safety supervision order in relation to each earlier community safety supervision order.

13 After subsection 14(3C)

Insert:

Warrants sought for Part 9.10 order applications

(3D) A law enforcement officer (or another person on the officer's behalf) may apply for the issue of a surveillance device warrant if:

(a) a person is a serious offender in relation to whom an application for a Part 9.10 order could be made; and

(b) the officer suspects on reasonable grounds that there is an appreciable risk of the person committing a serious violent or sexual offence; and

(c) consideration is being given, will be given, or is likely to be given, by the Immigration Minister (or a person on behalf of the Immigration Minister), as to whether to apply for a Part 9.10 order in relation to the person; and

(d) the officer suspects on reasonable grounds that the use of a surveillance device to obtain information would be likely to assist in determining whether to apply for the Part 9.10 order.

Warrants sought for community safety supervision orders

(3E) A law enforcement officer (or another person on the officer's behalf) may apply for the issue of a surveillance device warrant if:

(a) a community safety supervision order is in force in relation to a person; and

(b) the law enforcement officer suspects on reasonable grounds that the use of a surveillance device to obtain information relating to the person would be likely to substantially assist in:

(i) achieving a Part 9.10 object; or

(ii) determining whether the community safety supervision order, or any succeeding community safety supervision order, has been, or is being, complied with.

Note: For community safety supervision orders that have been made but not come into force, see section 6E.

14 Subsection 14(4)

Omit "or (3C)", substitute ", (3C), (3D) or (3E)".

15 Paragraph 14(6)(a)

After "paragraph (3C)(b)", insert "or (3E)(b)".

16 After paragraph 16(1)(bc)

Insert:

(bd) in the case of a warrant sought to determine whether to apply for a Part 9.10 order—that the conditions in paragraphs 14(3D)(a) and (c) are met, and that there are reasonable grounds for the suspicions founding the application for the warrant (as mentioned in paragraphs 14(3D)(b) and (d)); and

(be) in the case of a warrant sought in relation to a community safety supervision order that is in force in relation to a person—that the order is in force in relation to the person, and that there are reasonable grounds for the suspicion founding the application for the warrant (as mentioned in paragraph 14(3E)(b)); and

17 Subsection 16(1) (at the end of the note)

Add "For community safety supervision orders that have been made but not come into force, see section 6E.".

18 After subsection 16(3)

Insert:

(3A) In addition to the matters in subsection (2), in determining whether to issue a surveillance device warrant sought to determine whether to apply for a Part 9.10 order in relation to a person, the eligible Judge or nominated AAT member must have regard to:

(a) the likely value of the information sought to be obtained in determining whether to apply for the Part 9.10 order; and

(b) any previous application for a surveillance device warrant sought or issued to determine whether to apply for a Part 9.10 order in relation to the person.

19 At the end of section 16

Add:

(5) In addition to the matters in subsection (2), in determining whether to issue a surveillance device warrant sought in a case where a community safety supervision order is in force in relation to a person, the eligible Judge or nominated AAT member must have regard to:

(a) the likely value of the information sought to be obtained, in:

(i) achieving a Part 9.10 object; or

(ii) determining whether the community safety supervision order, or any succeeding community safety supervision order, has been, or is being, complied with; and

(b) whether the use of the surveillance device in accordance with the warrant would be the means of obtaining the evidence or information sought to be obtained, that is likely to have the least interference with any person's privacy; and

(c) the possibility that the person has committed, is committing, or will commit, a serious violent or sexual offence; and

(d) the possibility that the person has contravened, is contravening, or will contravene, the community safety supervision order or a succeeding community safety supervision order; and

(e) any previous surveillance device warrant sought or issued on the basis of a community safety supervision order that is or was in force in relation to the person.

20 Paragraph 17(1)(a)

Omit "and (4)", substitute ", (3A), (4) and (5)".

21 After subsection 17(1AB)

Insert:

(1AC) If a surveillance device warrant is issued to determine whether to apply for a Part 9.10 order in relation to a person, the warrant must also specify the name of the person.

(1AD) If a warrant is issued on the basis of a community safety supervision order that is in force in relation to a person, the warrant must also specify the following details in relation to the order:

(a) the name of the person;

(b) the date the order was made;

22 After subsection 17(1B)

Insert:

(1C) To avoid doubt, a warrant issued on the basis that a community safety supervision order is in force remains in force for the period mentioned in paragraph (1A)(a) even if the order ceases to be in force, provided that the order is replaced by a succeeding community safety supervision order.

Note: If there is no succeeding community safety supervision order, the warrant must be revoked (see section 21).

23 Subsection 19(4)

Omit "and (4)", substitute ", (3A), (4) and (5)".

24 Subsection 20(2)

Omit "or (3)", substitute ", (3) or (3A)".

25 After paragraph 21(2)(c)

Insert:

and (d) the warrant was not issued to determine whether to apply for a Part 9.10 order;

26 Subsection 21(2)

Omit "subsection (3)", substitute "subsections (3) and (3A)".

27 After subsection 21(3)

Insert:

(3A) The chief officer is required to take steps under subsection (2) in relation to a surveillance device warrant that is issued on the basis of a community safety supervision order that was in force in relation to a person only if neither the community safety supervision order, nor any succeeding community safety supervision order, is in force in relation to the person.

28 Subsection 21(5)

Omit "subsection (6)", substitute "subsections (6) and (7)".

29 At the end of section 21

Add:

(7) If the law enforcement officer to whom a warrant is issued, or who is primarily responsible for executing a warrant issued, on the basis that a community safety supervision order was in force in relation to a person believes that neither that order, nor any succeeding community safety supervision order, is in force in relation to the person, the officer must immediately inform the chief officer of the law enforcement agency to which the officer belongs or is seconded.

30 After subsection 27A(5A)

Insert:

Warrants sought for Part 9.10 order applications

(5B) A law enforcement officer (or another person on the officer's behalf) may apply for the issue of a computer access warrant if:

(a) a person is a serious offender in relation to whom an application for a Part 9.10 order could be made; and

(b) the officer suspects on reasonable grounds that there is an appreciable risk of the person committing a serious violent or sexual offence; and

(d) the officer suspects on reasonable grounds that access to data held in a computer (the target computer) would be likely to assist in determining whether to apply for the Part 9.10 order.

31 After subsection 27A(6)

Insert:

Warrants sought for community safety supervision orders

(6A) A law enforcement officer (or another person on the officer's behalf) may apply for the issue of a computer access warrant if:

(a) a community safety supervision order is in force in relation to a person; and

(b) the officer suspects on reasonable grounds that access to data held in a computer (the target computer) to obtain information relating to the person would be likely to substantially assist in:

(i) achieving a Part 9.10 object; or

(ii) determining whether the community safety supervision order, or any succeeding community safety supervision order, has been, or is being, complied with.

Note: For community safety supervision orders that have been made but not come into force, see section 6E.

32 Subsection 27A(7)

Omit "or (6)", substitute ", (5B), (6) or (6A)".

33 After subsection 27A(13)

Insert:

Unsworn applications warrants sought for community safety supervision orders

(13A) If a law enforcement officer believes that:

(a) immediate access to data held in the target computer referred to in subsection (6A) would be likely to substantially assist as described in paragraph (6A)(b); and

(b) it is impracticable for an affidavit to be prepared or sworn before an application for a warrant is made;

an application for a warrant under subsection (6A) may be made before an affidavit is prepared or sworn.

Applicant must provide information

34 Subsection 27A(14)

After "(13)", insert "or (13A)".

35 Subsection 27A(15)

Omit "or (6)", substitute ", (5B), (6) or (6A)".

36 After paragraph 27C(1)(da)

Insert:

(db) in the case of a computer access warrant sought to determine whether to apply for a Part 9.10 order—that the conditions in paragraphs 27A(5B)(a) and (c) are met, and there are reasonable grounds for the suspicions founding the application for the warrant (as mentioned in paragraphs 27A(5B)(b) and (d)); and

37 After paragraph 27C(1)(e)

Insert:

(ea) in the case of a computer access warrant sought in relation to a community safety supervision order that is in force in relation to a person—that the order is in force in relation to the person, and there are reasonable grounds for the suspicion founding the application for the warrant (as mentioned in paragraph 27A(6A)(b)); and

38 Subsection 27C(1) (at the end of the note)

Add "For community safety supervision orders that have been made but not come into force, see section 6E.".

39 At the end of section 27C

Add:

(5) In addition to the matters in subsection (2), in determining whether to issue a computer access warrant sought to determine whether to apply for a Part 9.10 order in relation to a person, the eligible Judge or nominated AAT member must have regard to:

(a) the likely value of the information sought to be obtained in determining whether to apply for the Part 9.10 order; and

(b) any previous application for a computer access warrant sought or issued to determine whether to apply for a Part 9.10 order in relation to the person.

(6) In addition to the matters in subsection (2), in determining whether to issue a computer access warrant sought in a case where a community safety supervision order is in force in relation to a person, the eligible Judge or nominated AAT member must have regard to:

(a) the likely value of the information sought to be obtained, in:

(i) achieving a Part 9.10 object; or

(ii) determining whether the community safety supervision order, or any succeeding community safety supervision order, has been, or is being, complied with; and

(b) whether the access to the data in accordance with the warrant would be the means of obtaining the evidence or information sought to be obtained, that is likely to have the least interference with any person's privacy; and

(c) the possibility that the person has committed, is committing, or will commit, a serious violent or sexual offence; and

(d) the possibility that the person has contravened, is contravening, or will contravene, the community safety supervision order or a succeeding community safety supervision order; and

(e) any previous computer access warrant sought or issued on the basis of a community safety supervision order that is or was in force in relation to the person.

40 Paragraph 27D(1)(a)

Omit "and (4)", substitute ", (4), (5) and (6)".

41 After subsection 27D(2)

Insert:

(2A) If a computer access warrant is issued to determine whether to apply for a Part 9.10 order in relation to a person, the warrant must also specify the name of the person.

(2B) If a computer access warrant is issued on the basis of a community safety supervision order that is in force in relation to a person, the warrant must also specify the following details:

(a) the name of the person;

(b) the date the community safety supervision order was made;

42 After subsection 27D(3A)

Insert:

(3B) To avoid doubt, a warrant issued on the basis that a community safety supervision order is in force remains in force for the period mentioned in paragraph (3)(a) even if the order ceases to be in force, provided that the order is replaced by a succeeding community safety supervision order.

Note: If there is no succeeding community safety supervision order, the warrant must be revoked (see section 27H).

43 At the end of subsection 27E(4)

Add:

; or (f) in the case of a warrant sought to determine whether to apply for a Part 9.10 order—access to the data would be likely to assist as described in paragraph 27A(5B)(d); or

(g) in the case of a warrant issued on the basis of a community safety supervision order that is in force in relation to a person—access to the data would be likely to substantially assist as described in paragraph 27A(6A)(b).

44 Subsection 27F(4)

Omit "and (4)", substitute ", (4), (5) and (6)".

45 Subsection 27G(2)

Omit "or (3)", substitute ", (3) or (4)".

46 After paragraph 27H(2)(c)

Insert:

and (d) the warrant was not issued to determine whether to apply for a Part 9.10 order;

47 Subsection 27H(2)

Omit "subsection (3)", substitute "subsections (3) and (4)".

48 Subsection 27H(3)

Omit "surveillance device warrant", substitute "computer access warrant".

49 After subsection 27H(3)

Insert:

(4) The chief officer is required to take steps under subsection (2) in relation to a computer access warrant that is issued on the basis of a community safety supervision order that was in force in relation to a person only if neither the community safety supervision order, nor any succeeding community safety supervision order, is in force in relation to the person.

50 At the end of section 27H

Add:

(11) If the law enforcement officer to whom a warrant is issued, or who is primarily responsible for executing a warrant issued, on the basis that a community safety supervision order was in force in relation to a person believes that neither the community safety supervision order, nor any succeeding community safety supervision order, is in force in relation to the person, the officer must immediately inform the chief officer of the law enforcement agency to which the officer belongs or is seconded.

51 At the end of section 37

Add:

(5) If a community safety supervision order is in force in relation to a person, a State or Territory law enforcement officer acting in the course of the officer's duties may, without warrant, use an optical surveillance device to obtain information about the activities of the person for either of the following purposes:

(a) achieving a Part 9.10 object;

(b) determining whether the community safety supervision order has been, or is being, complied with;

if the use of that device does not involve:

(d) interference without permission with any vehicle or thing.

52 After subsection 38(3A)

Insert:

(3B) If a community safety supervision order is in force in relation to a person, a State or Territory law enforcement officer acting in the course of the officer's duties may, without warrant, use a surveillance device to obtain information relating to the person for either of the following purposes:

(a) achieving a Part 9.10 object;

(b) determining whether the community safety supervision order has been, or is being, complied with;

if the use involves listening to, or recording, words spoken by a person, and the use is confined to circumstances where:

(c) the State or Territory law enforcement officer is the speaker of the words or is a person, or is included in a class or group of persons, by whom the speaker of the words intends, or should reasonably expect, the words to be heard; or

(d) the State or Territory law enforcement officer listens to or records the words with the consent, express or implied, of a person who is permitted to listen to or record the words:

(i) by paragraph (c); or

(ii) so far as subsection (7) applies in relation to the community safety supervision order—by that subsection.

53 At the end of section 38

Add:

(7) If:

(a) a community safety supervision order is in force in relation to a person; and

(b) a person (other than a State or Territory law enforcement officer) is assisting a State or Territory law enforcement officer who is acting in the course of the officer's duties in relation to either of the following purposes:

(i) achieving a Part 9.10 object;

(ii) determining whether the community safety supervision order has been, or is being, complied with;

the person assisting may, without warrant, use a surveillance device to obtain information relating to the person mentioned in paragraph (a) if:

(d) the person assisting is the speaker of the words or is a person, or is included in a class or group of persons, by whom the speaker of the words intends, or should reasonably expect, the words to be heard.

54 After subsection 39(3B)

Insert:

(3C) If a community safety supervision order is in force in relation to a person, a law enforcement officer may, with the written permission of an appropriate authorising officer, use a tracking device without a warrant to obtain information relating to the person for either of the following purposes:

(a) achieving a Part 9.10 object;

(b) determining whether the community safety supervision order, or any succeeding community safety supervision order, has been, or is being, complied with.

55 Subsection 39(4)

Omit "and (3B)", substitute ", (3B) and (3C)".

56 Subsections 39(5) and (7)

Omit "or (3B)", substitute ", (3B) or (3C)".

57 After paragraph 40(1)(db)

Insert:

(dc) if the authorisation is given on the basis of a community safety supervision order that is in force in relation to a person—the following details:

(i) the name of the person;

(ii) the date the order was made;

(iii) if (disregarding section 6E) the order is not already in force—when the order comes into force; and

58 Subparagraph 45(5)(ia)(i)

Omit "or Division 105A (post-sentence orders)", substitute ", Division 105A (post-sentence orders) or Division 395 (community safety orders)".

59 After paragraph 45(5)(k)

Insert:

(ka) in the case of information:

(i) obtained under a warrant issued on the basis of a community safety supervision order that is or was in force; or

(ii) relating to an application for, the issue of, the existence of, or the expiration of, such a warrant; or

(iii) that is likely to enable the identification of a person, object or premises specified in such a warrant;

determining whether the community safety supervision order, or any succeeding community safety supervision order, has been, or is being, complied with;

(kb) in the case of information:

(i) obtained under a tracking device authorisation given on the basis of a community safety supervision order; or

(ii) relating to an application for, the giving of, the existence of, or the expiration of, a tracking device authorisation given on the basis of a community safety supervision order; or

(iii) that is likely to enable the identification of a person, object or premises specified in a tracking device authorisation given on the basis of a community safety supervision order;

determining whether the community safety supervision order, or any succeeding community safety supervision order, has been, or is being, complied with;

60 Subsection 45(5A)

Omit "and (j)", substitute ", (j) and (ka)".

61 Subsection 45(5A) (at the end of the note)

Add "or a Part 9.10 order".

62 Subsection 45(6)

Omit "(k)", substitute "(kb)".

63 After section 46A

Insert:

46B Destruction of records — information obtained before a community safety supervision order came into force

(1) If:

(a) a record or report is in the possession of a law enforcement agency; and

(b) the record or report comprises information obtained from the use of a surveillance device under:

(i) a surveillance device warrant; or

(ii) a tracking device authorisation;

issued or given on the basis of a community safety supervision order made in relation to a person; and

(c) in the case of a surveillance device warrant issued on the basis that a community safety supervision order was in force—the warrant was issued for the purpose, or for purposes that include the purpose, of obtaining information that would be likely to substantially assist in connection with determining whether the order, or any succeeding community safety supervision order, has been, or is being, complied with; and

(d) in the case of a tracking device authorisation—the authorisation was given to obtain information relating to the person for the purpose, or for purposes that include the purpose, of determining whether the community safety supervision order, or any succeeding community safety supervision order, has been, or is being, complied with; and

(e) the use of the surveillance device occurred when the community safety supervision order had been made, but had not come into force; and

(f) the chief officer of the agency is satisfied that none of the information obtained from the use of the surveillance device is likely to assist in connection with achieving a Part 9.10 object;

the chief officer of the agency must cause the record or report to be destroyed as soon as practicable.

(2) If:

(a) a record or report is in the possession of a law enforcement agency; and

(b) the record or report comprises information obtained from access to data under a computer access warrant issued on the basis of a community safety supervision order made in relation to a person; and

(c) the warrant was issued for the purpose, or for purposes that include the purpose, of obtaining information that would be likely to substantially assist in connection with determining whether the community safety supervision order, or any succeeding community safety supervision order, has been, or is being, complied with; and

(d) access to the data occurred when the community safety supervision order had been made, but had not come into force; and

(e) the chief officer of the agency is satisfied that none of the information obtained from accessing the data is likely to assist in connection with achieving a Part 9.10 object;

the chief officer of the agency must cause the record or report to be destroyed as soon as practicable.

(3) Section 6E does not apply to subsection (1) or (2) of this section.

64 After subparagraph 49(2)(b)(xb)

Insert:

(xc) if the warrant is a Part 9.10 warrant—give the details specified in subsection (2AA); and

65 After subsection 49(2A)

Insert:

(2AA) For the purposes of subparagraph (2)(b)(xc), the details are:

(a) if the warrant was issued to determine whether to apply for a Part 9.10 order—the benefit of the use of the device in determining whether to make the application; and

(b) if the warrant was issued on the basis of a community safety supervision order that is or was in force in relation to a person—the benefit of the use of the device in:

(i) achieving a Part 9.10 object; or

(ii) determining whether the community safety supervision order has been, or is being, complied with; and

66 After subparagraph 49(2B)(b)(ix)

Insert:

(ixa) if the warrant is a Part 9.10 warrant—give the details specified in subsection (2CA); and

67 After subsection 49(2C)

Insert:

(2CA) For the purposes of subparagraph (2B)(b)(ixa), the details are:

(a) if the warrant was issued to determine whether to apply for a Part 9.10 order—the benefit of obtaining access to data held in the computer in determining whether to make the application; and

(b) if the warrant was issued on the basis of a community safety supervision order that is or was in force in relation to a person—the benefit of obtaining access to data held in the computer in:

(i) achieving a Part 9.10 object; or

(ii) determining whether the community safety supervision order has been, or is being, complied with; and

68 Section 49A (at the end of the heading)

Add "or Part 9.10 warrants".

69 Subsection 49A(1)

After "Part 5.3 warrant", insert "or a Part 9.10 warrant".

70 After paragraph 49A(2)(c)

Insert:

(ca) section 46B;

71 Subsection 49A(4)

After "Part 5.3 supervisory order", insert ", or a community safety supervision order,".

72 Subsections 50A(2) to (5)

After "Part 5.3 information" (wherever occurring), insert "or Part 9.10 information".

73 Subsection 50A(6)

Insert:

Part 9.10 information means information that, if made public, could reasonably be expected to enable a reasonable person to conclude that:

(a) a surveillance device warrant issued in response to an application under subsection 14(3D) or (3E) authorising:

(i) the use of a surveillance device on particular premises; or

(ii) the use of a surveillance device in or on a particular object or class of object; or

(iii) the use of a surveillance device in respect of the conversations, activities or location of a particular person;

is likely to be, or is not likely to be, in force; or

(b) a computer access warrant issued in response to an application under subsection 27A(5B) or (6A) authorising:

(i) access to data held in a particular computer; or

(ii) access to data held in a computer on particular premises; or

(iii) access to data held in a computer associated with, used by or likely to be used by, a particular person;

is likely to be, or is not likely to be, in force.

74 Paragraph 52(1)(j)

After "(1A)", insert "or 46B(1) or (2)".

75 Subparagraph 53(2)(c)(iiic)

After "Part 5.3 supervisory order", insert ", or a community safety supervision order,".

76 Subsection 55(2A)

After "Part 5.3 warrants", insert "or Part 9.10 warrants".

77 Subsection 61(4) (at the end of the heading)

Add "or Part 9.10 information".

78 At the end of subsection 61(4)

Add "or Part 9.10 information".

79 Paragraphs 61(6)(c) and (d)

After "Part 5.3 information", insert "or Part 9.10 information".

80 Section 61A (at the end of the heading)

Add "or Part 9.10 warrants".

81 Subsection 61A(1)

After "Part 5.3 warrants", insert "or Part 9.10 warrants".

82 After subsection 64A(6)

Insert:

Part 9.10 warrants

(6AA) In the case of a computer that is subject to a Part 9.10 warrant that is a computer access warrant, the eligible Judge or nominated AAT member may grant the assistance order if the eligible Judge or nominated AAT member is satisfied that:

(a) there are reasonable grounds for suspecting that access to the data held in the computer would be likely to substantially assist in:

(i) if the computer access warrant was issued to determine whether to apply for a Part 9.10 order—determining whether to apply for the Part 9.10 order; or

(ii) if the computer access warrant was issued on the basis of a community safety supervision order that is in force—achieving a Part 9.10 object, or determining whether the community safety supervision order, or any succeeding community safety supervision order, has been, or is being, complied with; and

(b) the specified person is:

(i) if the warrant was issued to determine whether to apply for a Part 9.10 order—the person to whom the application relates; or

(ii) if the warrant was issued in relation to a community safety supervision order that is in force—the subject of the community safety supervision order; or

(iii) the owner or lessee of the computer; or

(iv) an employee of the owner or lessee of the computer; or

(v) a person engaged under a contract for services by the owner or lessee of the computer; or

(vi) a person who uses or has used the computer; or

(vii) a person who is or was a system administrator for the system including the computer; and

(i) the computer or a computer network of which the computer forms or formed a part; or

(ii) measures applied to protect data held in the computer.

Telecommunications (Interception and Access) Act 1979

83 Subsection 5(1)

Insert:

community safety detention order has the same meaning as in Division 395 of the Criminal Code.

community safety supervision order has the same meaning as in Division 395 of the Criminal Code.

Immigration Minister means the Minister administering the Migration Act 1958.

Part 9.10 object means the protection of the community from serious harm by addressing the unacceptable risk of a serious offender committing serious violent or sexual offences.

Part 9.10 order means a community safety detention order or a community safety supervision order.

Part 9.10 warrant means a warrant issued:

(a) under subsection 46(9) or (12) or 46A(2E) or (2G); or

(b) under section 48 in the circumstances mentioned in subsection 46(9) or (12).

Part 9.10 warrant agency means:

(a) a Commonwealth agency; or

(b) an eligible authority of a State that a declaration in force under section 34 authorises to apply for Part 9.10 warrants.

84 Subsection 5(1) (at the end of paragraph (b) of the definition of permitted purpose )

Add:

(x) the performance of a function or duty, or the exercise of a power, by a person, court or other body under, or in relation to a matter arising under, Division 395 of the Criminal Code (community safety orders); or

(xi) the making of a decision whether to apply for a Part 9.10 order, or for a variation or review of a Part 9.10 order, under Division 395 of the Criminal Code in relation to a person; or

85 Subsection 5(1)

Insert:

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.

succeeding community safety supervision order has the meaning given by section 6UB.

86 After paragraph 5B(1)(bb)

Insert:

(bba) a proceeding under, or a proceeding relating to a matter arising under, Division 395 of the Criminal Code (community safety orders); or

87 Paragraph 6H(a)

Omit "or 46(7)(c) to (h)", substitute "46(7)(c) to (h), 46(9)(c), (d) and (e), or 46(12)(c) to (g)".

88 Paragraph 6H(b)

Omit "or 46A(2C)(c) to (h)", substitute ", 46A(2C)(c) to (h), 46A(2E)(c), (d) and (e), or 46A(2G)(a) to (g)".

89 After section 6U

Insert:

6UA When a community safety supervision order is taken to be in force

6UB Succeeding community safety supervision orders

90 Subsection 7(9) (at the end of the note)

Add:

; or (c) purposes relating to a community safety supervision order or an application for a Part 9.10 order.

91 Section 34 (note)

After "Part 5.3 warrants", insert "or Part 9.10 warrants".

92 Section 34 (note)

Omit "section 38A", substitute "sections 38A and 38B".

93 At the end of Division 2 of Part 2-5

Add:

38B Agencies authorised to apply for Part 9.10 warrants

(1) This section applies to a declaration made under section 34 in relation to an eligible authority of a State.

Authorisation

(2) When the Minister makes the declaration, the Minister must, in the declaration, authorise the eligible authority to apply for Part 9.10 warrants if:

(a) the Premier of the State requests that the eligible authority be so authorised; and

(b) the Minister is satisfied as mentioned in subsection (4) of this section.

(3) The Minister must amend the declaration to authorise the eligible authority to apply for Part 9.10 warrants if:

(a) the declaration does not already so authorise the eligible authority; and

(b) the Premier of the State requests that the eligible authority be so authorised; and

Criteria to be authorised to apply for a Part 9.10 warrant

(4) For the purposes of paragraph (2)(b) or (3)(c), the Minister must be satisfied that the law of the State makes satisfactory provision:

(a) imposing on the chief officer of the eligible authority requirements corresponding to the requirements that paragraphs 80(f) and (g) and 81(1)(h) and subsection 81(2), so far as that subsection relates to paragraph 81(1)(h), impose on the chief officer of a Commonwealth agency; and

(b) imposing on the chief officer of the eligible authority requirements corresponding to the requirements that section 59C imposes on the chief officer of a Commonwealth agency; and

(c) giving an authority of the State powers corresponding to those that subsections 83(3) and 84(2) and sections 85 and 85B give to the Ombudsman, if the authority of the State receives a notice from the eligible authority because of the requirements mentioned in paragraph (b) of this subsection; and

(d) requiring an authority of the State that has made an inspection of the eligible authority's records under the powers mentioned in paragraph (c) to report in writing to the responsible Minister about the results of the inspection; and

(e) requiring the responsible Minister to give to the Minister, as soon as practicable, a copy of a report that an authority of the State gives to the responsible Minister under a power or requirement mentioned in paragraph (c) or (d).

Removal of authorisation

(5) The Minister must amend the declaration to remove the authorisation of the eligible authority to apply for Part 9.10 warrants if the Premier of the State requests the Minister to remove the authorisation.

(6) The Minister may amend the declaration to remove the authorisation of the eligible authority to apply for Part 9.10 warrants if the Minister is satisfied that:

(a) the law of the State no longer makes satisfactory provision in relation to the eligible authority as mentioned in subsection (4); or

(b) the extent of compliance with a requirement of a law of that State, being a requirement of a kind mentioned in subsection (4), has been unsatisfactory in so far as the requirement relates to the eligible authority; or

(c) the extent of compliance by the chief officer of the eligible authority, or by officers of the eligible authority, with this Act has been unsatisfactory, so far as this Act relates to Part 9.10 warrants.

(7) If the Minister amends the declaration under subsection (5) or (6), the amendment does not affect the validity of a Part 9.10 warrant issued before the amendment in response to an application by the eligible authority.

94 Paragraph 44A(2)(a)

Omit "or 46(8)(a) to (e)", substitute ", 46(8)(a) to (e), 46(10)(a) to (h) or 46(13)(a) to (e)".

95 Paragraph 44A(2)(b)

Omit "or 46A(2D)(a) to (e)", substitute ", 46A(2D)(a) to (e), 46A(2F)(a) to (h) or 46A(2H)(a) to (e)".

96 Paragraph 45(2)(a)

Omit "or 46(8)(a) to (e)", substitute ", 46(8)(a) to (e), 46(10)(a) to (h) or 46(13)(a) to (e)".

97 Paragraph 45(2)(b)

Omit "or 46A(2D)(a) to (e)", substitute ", 46A(2D)(a) to (e), 46A(2F)(a) to (h) or 46A(2H)(a) to (e)".

98 At the end of section 46

Add:

Warrant sought for community safety supervision order

(9) If a Part 9.10 warrant agency applies to an eligible Judge or nominated AAT member for a warrant in respect of a telecommunications service and the Judge or nominated AAT member is satisfied, on the basis of the information given to the Judge or nominated AAT member under this Part in connection with the application, that:

(a) Division 3 has been complied with in relation to the application; and

(b) in the case of a telephone application—because of urgent circumstances, it was necessary to make the application by telephone; and

(d) either:

(i) a community safety supervision order is in force in relation to the particular person; or

(ii) a community safety supervision order is in force in relation to another person, and the particular person is likely to communicate with the other person using the service; and

(e) information that would be likely to be obtained by intercepting under a warrant communications made to or from the service would be likely to substantially assist in connection with:

(i) achieving a Part 9.10 object; or

(ii) determining whether the community safety supervision order, or any succeeding community safety supervision order, has been, or is being, complied with; and

(f) having regard to the matters referred to in subsection (10), and to no other matters, the Judge or nominated AAT member should issue a warrant authorising such communications to be intercepted;

the Judge or nominated AAT member may, in the Judge or member's discretion, issue such a warrant.

Note 1: Subsection (11) restricts the issuing of warrants if subparagraph (d)(ii) applies.

Note 2: For community safety supervision orders that have been made but not come into force, see section 6UA.

(10) For the purposes of subsection (9), the matters to which the Judge or nominated AAT member must have regard are:

(a) how much the privacy of any person or persons would be likely to be interfered with by intercepting under a warrant communications made to or from the service referred to in subsection (9); and

(b) how much the information referred to in paragraph (9)(e) would be likely to assist in connection with:

(i) achieving a Part 9.10 object; or

(ii) determining whether the community safety supervision order, or any succeeding community safety supervision order, has been, or is being, complied with; and

(i) achieving a Part 9.10 object; or

(ii) determining whether the community safety supervision order, or any succeeding community safety supervision order, has been, or is being, complied with;

that do not involve so intercepting communications have been used by, or are available to, the agency; and

(d) how much the use of such methods would be likely to assist in connection with:

(i) achieving a Part 9.10 object; or

(ii) determining whether the community safety supervision order, or any succeeding community safety supervision order, has been, or is being, complied with; and

(e) how much the use of such methods would be likely to prejudice:

(i) achieving a Part 9.10 object; or

(ii) determining whether the community safety supervision order, or any succeeding community safety supervision order, has been, or is being, complied with;

whether because of delay or for any other reason; and

(f) whether intercepting under a warrant communications made to or from the service referred to in subsection (9) would be the method that is likely to have the least interference with any person's privacy; and

(g) the possibility that the person in relation to whom the order is in force has committed, is committing, or will commit a serious violent or sexual offence; and

(h) the possibility that the person in relation to whom the order is in force:

(i) has contravened, is contravening or will contravene the community safety supervision order; or

(ii) will contravene a succeeding community safety supervision order; and

(i) in relation to an application by an interception agency of Victoria—any submissions made by the Victorian PIM under section 44A to the Judge or nominated AAT member; and

(j) in relation to an application by an interception agency of Queensland—any submissions made by the Queensland PIM under section 45 to the Judge or nominated AAT member.

(11) The Judge or nominated AAT member must not issue a warrant in a case in which subparagraph (9)(d)(ii) applies unless the Judge or nominated AAT member is satisfied that:

(a) the agency has exhausted all other practicable methods of identifying the telecommunications services used, or likely to be used, by the person to whom the community safety supervision order referred to in subparagraph (9)(d)(ii) relates; or

(b) interception of communications made to or from a telecommunications service used or likely to be used by that person would not otherwise be possible.

Warrant sought for Part 9.10 order application

(12) If a Part 9.10 warrant agency applies to an eligible Judge or nominated AAT member for a warrant in respect of a telecommunications service and the Judge or nominated AAT member is satisfied, on the basis of the information given to the Judge or nominated AAT member under this Part in connection with the application, that:

(a) Division 3 has been complied with in relation to the application; and

(b) in the case of a telephone application—because of urgent circumstances, it was necessary to make the application by telephone; and

(d) the person is a serious offender in relation to whom an application for a Part 9.10 order could be made; and

(e) there are reasonable grounds to suspect that there is an appreciable risk of the person committing a serious violent or sexual offence; and

(f) consideration is being given, will be given, or is likely to be given, by the Immigration Minister (or a person on behalf of the Immigration Minister), as to whether to apply for a Part 9.10 order in relation to the person; and

(g) information that would be likely to be obtained by intercepting under a warrant communications made to or from the service would be likely to assist in determining whether to apply for the Part 9.10 order; and

(h) having regard to the matters referred to in subsection (13), and to no other matters, the Judge or nominated AAT member should issue a warrant authorising such communications to be intercepted;

the Judge or nominated AAT member may, in the Judge's or member's discretion, issue such a warrant.

(13) For the purposes of subsection (12), the matters to which the Judge or nominated AAT member must have regard are:

(a) how much the privacy of any person or persons would be likely to be interfered with by intercepting under a warrant communications made to or from the service referred to in subsection (12); and

(b) how much the information referred to in paragraph (12)(g) would be likely to assist in determining whether to apply for the Part 9.10 order; and

(c) to what extent methods of determining whether to apply for the Part 9.10 order that do not involve so intercepting communications have been used by, or are available to, the Immigration Minister (or a legal representative of the Immigration Minister); and

(d) how much the use of such methods would be likely to assist in determining whether to apply for the Part 9.10 order; and

(e) how much the use of such methods would be likely to prejudice determining whether to apply for the Part 9.10 order, whether because of delay or for any other reason; and

(f) in relation to an application by an interception agency of Victoria—any submissions made by the Victorian PIM under section 44A to the Judge or nominated AAT member; and

(g) in relation to an application by an interception agency of Queensland—any submissions made by the Queensland PIM under section 45 to the Judge or nominated AAT member.

99 After subsection 46A(2D)

Insert:

Warrant for community safety supervision order

(2E) If a Part 9.10 warrant agency applies to an eligible Judge or nominated AAT member for a warrant in respect of a person and the Judge or nominated AAT member is satisfied, on the basis of the information given to the Judge or nominated AAT member under this Part in connection with the application, that:

(a) Division 3 has been complied with in relation to the application; and

(b) in the case of a telephone application—because of urgent circumstances, it was necessary to make the application by telephone; and

(c) there are reasonable grounds for suspecting that a particular person is using, or is likely to use, more than one telecommunications service; and

(d) a community safety supervision order is in force in relation to the person; and

(e) information that would be likely to be obtained by intercepting under a warrant:

(i) communications made to or from any telecommunications service that the person is using, or is likely to use; or

(ii) communications made by means of a particular telecommunications device or particular telecommunications devices that the person is using, or is likely to use;

would be likely to substantially assist in connection with:

(iii) achieving a Part 9.10 object; or

(iv) determining whether the community safety supervision order, or any succeeding community safety supervision order, has been, or is being, complied with; and

(f) having regard to the matters referred to in subsection (2F), and to no other matters, the Judge or nominated AAT member should issue a warrant authorising such communications to be intercepted;

the Judge or nominated AAT member may, in the Judge or member's discretion, issue such a warrant.

Note 1: Subsection (3) restricts the issuing of a warrant authorising interception of communications made by means of a telecommunications device or telecommunications devices identified in the warrant.

Note 2: For community safety supervision orders that have been made but not come into force, see section 6UA.

(2F) For the purposes of subsection (2E), the matters to which the Judge or nominated AAT member must have regard are:

(a) how much the privacy of any person or persons would be likely to be interfered with by intercepting under a warrant:

(i) communications made to or from any telecommunications service used, or likely to be used, by the person in respect of whom the warrant is sought; or

(ii) communications made by means of a particular telecommunications device or particular telecommunications devices used, or likely to be used, by the person in respect of whom the warrant is sought;

as the case requires; and

(b) how much the information referred to in paragraph (2E)(e) would be likely to assist in connection with:

(i) achieving a Part 9.10 object; or

(ii) determining whether the community safety supervision order, or any succeeding community safety supervision order, has been, or is being, complied with; and

(i) achieving a Part 9.10 object; or

(ii) determining whether the community safety supervision order, or any succeeding community safety supervision order, has been, or is being, complied with;

that do not involve the use of a warrant issued under this section in relation to the person have been used by, or are available to, the agency; and

(d) how much the use of such methods would be likely to assist in connection with:

(i) achieving a Part 9.10 object; or

(ii) determining whether the community safety supervision order, or any succeeding community safety supervision order, has been, or is being, complied with; and

(e) how much the use of such methods would be likely to prejudice:

(i) achieving a Part 9.10 object; or

(ii) determining whether the community safety supervision order, or any succeeding community safety supervision order, has been, or is being, complied with;

whether because of delay or for any other reason; and

(f) whether intercepting under a warrant communications referred to in paragraph (a) of this subsection would be the method that is likely to have the least interference with any person's privacy; and

(g) the possibility that the person in relation to whom the order is in force has committed, is committing, or will commit a serious violent or sexual offence; and

(h) the possibility that the person in relation to whom the order is in force:

(i) has contravened, is contravening, or will contravene, the community safety supervision order; or

(ii) will contravene a succeeding community safety supervision order; and

(i) in relation to an application by an interception agency of Victoria—any submissions made by the Victorian PIM under section 44A to the Judge or nominated AAT member; and

(j) in relation to an application by an interception agency of Queensland—any submissions made by the Queensland PIM under section 45 to the Judge or nominated AAT member.

Warrant sought for Part 9.10 order application

(2G) If a Part 9.10 warrant agency applies to an eligible Judge or nominated AAT member for a warrant in respect of a person and the Judge or nominated AAT member is satisfied, on the basis of the information given to the Judge or nominated AAT member under this Part in connection with the application, that:

(a) Division 3 has been complied with in relation to the application; and

(b) in the case of a telephone application—because of urgent circumstances, it was necessary to make the application by telephone; and

(c) there are reasonable grounds for suspecting that a particular person is using, or is likely to use, more than one telecommunications service; and

(d) the person is a serious offender in relation to whom an application for a Part 9.10 order could be made; and

(e) there are reasonable grounds to suspect that there is an appreciable risk of the person committing a serious violent or sexual offence; and

(g) information that would be likely to be obtained by intercepting under a warrant:

(i) communications made to or from any telecommunications service that the person is using, or is likely to use; or

(ii) communications made by means of a particular telecommunications device or particular telecommunications devices that the person is using, or is likely to use;

would be likely to assist in determining whether to apply for the Part 9.10 order; and

(h) having regard to the matters referred to in subsection (2H), and to no other matters, the Judge or nominated AAT member should issue a warrant authorising such communications to be intercepted;

the Judge or nominated AAT member may, in the Judge's or member's discretion, issue such a warrant.

(2H) For the purposes of subsection (2G), the matters to which the Judge or nominated AAT member must have regard are:

(a) how much the privacy of any person or persons would be likely to be interfered with by intercepting under a warrant:

(i) communications made to or from any telecommunications service used, or likely to be used, by the person in respect of whom the warrant is sought; or

(b) how much the information referred to in paragraph (2G)(g) would be likely to assist in connection with determining whether to apply for the Part 9.10 order; and

(c) to what extent methods (including the use of a warrant issued under section 46) for determining whether to apply for a Part 9.10 order that do not involve so intercepting communications have been used by, or are available to, the Immigration Minister (or a legal representative of the Immigration Minister); and

(d) how much the use of such methods would be likely to assist in determining whether to apply for the Part 9.10 order; and

(e) how much the use of such methods would be likely to prejudice determining whether to apply for the Part 9.10 order, whether because of delay or for any other reasons; and

(f) in relation to an application by an interception agency of Victoria—any submissions made by the Victorian PIM under section 44A to the Judge or nominated AAT member; and

(g) in relation to an application by an interception agency of Queensland—any submissions made by the Queensland PIM under section 45 to the Judge or nominated AAT member.

100 Subsection 48(1) (note)

Omit "Note", substitute "Note 1".

101 At the end of subsection 48(1)

Add:

Note 2: Only a Part 9.10 warrant agency may apply for a warrant under section 46 in the circumstances mentioned in subsection 46(9) or (12).

102 Subparagraph 48(3)(d)(ii)

After "subsection 46(4)", insert "or (9)".

103 Paragraph 49(3)(a)

Omit "or 46(4)(d)(ii)", substitute ", 46(4)(d)(ii) or 46(9)(d)(ii)".

104 After subsection 49(6A)

Insert:

(6B) To avoid doubt, a warrant issued on the basis that a community safety supervision order is in force remains in force for the period mentioned in subsection (3) even if the order ceases to be in force, provided that the order is replaced by a succeeding community safety supervision order.

Note: If there is no succeeding community safety supervision order, the warrant must be revoked (see section 57).

105 At the end of section 49

Add:

Content of warrants issued for community safety supervision orders

(10) A warrant issued for a community safety supervision order that is in force must:

(a) state that the warrant is issued on the basis of a community safety supervision order made in relation to a person; and

(b) specify the name of the person; and

Warrants issued for Part 9.10 order applications

(11) A warrant issued to determine whether to make an application for a Part 9.10 order in relation to a person must:

(a) state that the warrant is issued on that basis; and

(b) specify the name of the person.

106 At the end of section 57

Add:

(7) For the purposes of the application of subsection (1) to a community safety supervision order warrant issued on the ground that a community safety supervision order was in force, that ground is taken to have ceased to exist if, and only if, neither that community safety supervision order, nor any succeeding community safety supervision order, is in force.

107 After section 59B

Insert:

59C Notification to Ombudsman by Commonwealth agencies in relation to Part 9.10 warrants

(1) Within 6 months after a Part 9.10 warrant is issued in response to an application by a Commonwealth agency, the chief officer of the agency must:

(a) notify the Ombudsman that the warrant has been issued; and

(b) give to the Ombudsman a copy of the warrant.

(2) As soon as practicable after an officer of a Commonwealth agency contravenes any of the following conditions, restrictions or provisions, the chief officer of the agency must notify the Ombudsman of the contravention:

(a) a condition or restriction specified in the warrant under subsection 49(2);

(b) the following provisions, to the extent that they apply to the warrant:

(i) paragraph 57(1)(b);

(ii) subsection 63(1);

(iii) subsection 63(2);

(iv) section 79;

(d) subsection 103B(4).

(3) A failure to comply with subsection (1) or (2) does not affect the validity of the warrant.

108 At the end of subsection 65A(2)

Add:

; or (c) any of the following:

(i) achieving a Part 9.10 object;

(ii) determining whether a community safety supervision order has been, or is being, complied with;

(iii) the performance of a function or duty, or the exercise of a power, by a person, court or other body under, or in relation to a matter arising under, Division 395 of the Criminal Code (community safety orders).

109 At the end of subsection 67(1C)

Add:

; or (d) if the information was obtained under a Part 9.10 warrant issued on the basis that a community safety supervision order was in force in relation to a person—any of the following:

(i) achieving a Part 9.10 object;

(ii) determining whether the community safety supervision order has been, or is being, complied with; or

(e) if the information was obtained under any Part 9.10 warrant—the performance of a function or duty, or the exercise of a power, by a person, court or other body under, or in relation to a matter arising under:

(i) Division 395 of the Criminal Code (community safety orders); or

(ii) a Part 9.10 order.

110 After section 79AA

Insert:

79AB Destruction of restricted records — information obtained before a community safety supervision order came into force

(1) If:

(a) a restricted record is in the possession of an agency; and

(b) the restricted record relates to an interception authorised by a community safety supervision order warrant; and

(c) the warrant was issued for the purpose, or for purposes that include the purpose, of obtaining information that would be likely to assist in connection with determining whether the relevant community safety supervision order, or any succeeding community safety supervision order, has been, or is being, complied with; and

(d) the interception occurred when the community safety supervision order had been made but had not come into force; and

(e) the chief officer of the agency is satisfied that none of the information obtained by the interception is likely to assist in connection with achieving a Part 9.10 object;

the chief officer of the agency must cause the restricted record to be destroyed as soon as practicable.

(2) Section 6UA does not apply to subsection (1) of this section.

111 At the end of subsection 81A(2)

Add:

; and (i) in the case of a Part 9.10 warrant—the name of the person to whom the relevant community safety supervision order or application relates.

112 After paragraph 81C(2)(h)

Insert:

; (i) in the case of a Part 9.10 warrant—the name of the person to whom the relevant community safety supervision order or application relates.

113 Subsections 83(1) and (2)

After "79AA,", insert "79AB,".

114 Subsection 83(3)

After "(about Part 5.3 warrants)", insert "or subsection 59C(2) (about Part 9.10 warrants)".

115 Subsection 85(3)

After "79AA,", insert "79AB,".

116 After section 85A

Insert:

85B Annual report may cover notified breaches in relation to Part 9.10 warrants

(1) In a report under subsection 84(1) in relation to a financial year, the Ombudsman may include a report on a contravention of which the Ombudsman is notified under subsection 59C(2) (about Part 9.10 warrants), if the Ombudsman does not conduct an inspection under subsection 83(3) in relation to a period during which the contravention occurred.

Note: If the Ombudsman conducts an inspection under subsection 83(3), the relevant report under subsection 84(1):

(a) must include the matters mentioned in subsection 84(1A) in relation to the inspection; and

(b) may include other information about contraventions of this Act (see section 85).

(2) For the purposes of subsection (1), it does not matter whether the Ombudsman is notified under subsection 59C(2) before, during or after the financial year to which the report relates.

(3) Subsection (1) does not limit what the Ombudsman may include in a report under section 84 or 85.

117 Subsection 103B(2)

After "Part 5.3 information", insert "or Part 9.10 information".

118 Subsection 103B(3)

After "Part 5.3 information", insert "or Part 9.10 information (as the case may be)".

119 Paragraphs 103B(4)(a) and (b)

After "Part 5.3 information", insert "or Part 9.10 information (as the case may be)".

120 Subsection 103B(5)

After "Part 5.3 information", insert "or Part 9.10 information (as the case may be)".

121 Subsection 103B(6)

Insert:

Part 9.10 information means information that, if made public, could reasonably be expected to enable a reasonable person to conclude that:

(a) a Part 9.10 warrant is likely to be, or is not likely to be, in force in relation to a telecommunications service used, or likely to be used, by a particular person; or

(b) a Part 9.10 warrant is likely to be, or is not likely to be, in force in relation to a particular person.

122 At the end of the heading to section 139B

Add "or Part 9.10 orders".

123 At the end of subsection 139B(2)

Add:

; or (c) Division 395 of the Criminal Code (community safety orders).

124 After subparagraph 180D(2)(b)(ia)

Insert:

(ib) for the purposes of Division 395 of the Criminal Code (community safety orders); or

125 After subparagraph 180D(2)(c)(ia)

Insert:

(ib) for the purposes of Division 395 of the Criminal Code (community safety orders); or

126 After subparagraph 181B(3)(b)(iia)

Insert:

(iib) for the purposes of Division 395 of the Criminal Code (community safety orders); or

127 After subparagraph 181B(6)(b)(iaa)

Insert:

(iab) for the purposes of Division 395 of the Criminal Code (community safety orders); or

128 After subparagraph 182(2)(a)(iiia)

Insert:

(iiib) for the purposes of Division 395 of the Criminal Code (community safety orders); or

129 After subparagraph 182(3)(a)(iia)

Insert:

(iib) for the purposes of Division 395 of the Criminal Code (community safety orders); or

130 After subparagraph 182B(b)(iva)

Insert:

(ivb) for the purposes of Division 395 of the Criminal Code (community safety orders); or

Part 2 — Application provisions

131 Application provisions — Division 395 and related amendments

(1) Division 395 of the Criminal Code, as inserted by this Schedule, applies in relation to a conviction for a serious violent or sexual offence, or a serious foreign violent or sexual offence, that occurs before, on or after the commencement of this item.

(2) The Surveillance Devices Act 2004 and the Telecommunications (Interception and Access) Act 1979, as amended by this Schedule, apply in relation to a serious offender, whether the conviction concerned occurs before, on or after the commencement of this item.

132 Application provision — declarations

Subsections 38B(3), (5) and (6) of the Telecommunications (Interception and Access) Act 1979, as inserted by this Schedule, apply in relation to a declaration that is in force on or after the commencement of this item, whether the declaration was made before, on or after that commencement.

133 Application provision — information and documents

The amendments of the Telecommunications (Interception and Access) Act 1979 made by this Schedule apply in relation to:

(a) the making of a record of, the disclosure of or the use of information on or after the commencement of this item; and

(b) the disclosure or use of a document on or after the commencement of this item;

whether the information or document was obtained before, on or after that commencement.

This legislation, which now includes amendments to both the Migration Act and the Criminal Code, complements and further strengthens the amendments previously introduced to parliament. It builds on and reinforces the measures passed by the parliament on 16 November. These measures are only necessary because of the mess the opposition leader, Mr Dutton, made of the home affairs portfolio while he had carriage of it in the former government.

It's important that we don't forget how we got to this place. We got here because the High Court found that a detention regime that was implemented by Mr Dutton as minister was unconstitutional and unlawful. We got here because Mr Dutton failed to resettle any of the former detainees, who have now been released in line with the High Court orders. We got here because Mr Dutton intervened to allow the plaintiff in the High Court case to apply for another visa. We got here after a month of politics from Mr Dutton—politics rather than protecting the community. We saw only last week Mr Dutton and the coalition vote against laws that we as the government introduced that sought to strengthen this regime. But, instead of backing that extra layer of protection, Mr Dutton and the coalition voted with the Greens against those amendments only last week. That is how we got here—after a series of failures by Mr Dutton and the coalition over Mr Dutton's period as the home affairs minister.

Now Mr Dutton tries to blame the Albanese government for his own failures. We all remember that person at school who you were listed to do a group assignment with and who tells you for years, for weeks or for months that they've contributed their bit of the assignment, and then you find out on the day that the assignment is due that they haven't done anything. That is the situation we found with Mr Dutton. There were years of claims made by Mr Dutton that he had done this and done that and that he was this tough and that tough. Now we find out—now that he is not the Minister for Home Affairs anymore—that his entire migration system and his entire detention system was an absolute ruse that didn't stand up in court. That is how we got here. Let's not buy any of this nonsense from the opposition that this is the Albanese government's fault. The responsibility for this mess lies firmly at the feet not just of the coalition but of Mr Dutton himself. We need to remember that, as we in the Albanese government fix this mess and make these laws go through—making strong laws stronger, making strict laws stricter and making tough laws tougher. That's what we are doing with the legislation to fix Mr Dutton's mess.

Specifically this package strengthens the already robust laws that have been introduced to ensure the protection of the community by introducing new powers for the courts to impose community safety orders where there is substantial admissible evidence of a high risk to the community from people who have previously committed a serious, violent or sexual offence. This judicially supervised scheme includes a mechanism to detain, or impose additional conditions on, noncitizens who pose an unacceptable risk to the community but who have no real prospect of being removed from Australia in the reasonably foreseeable future.

On 8 November, the High Court determined that plaintiff NZYQ's detention was unlawful 'by reason of their having been, and continuing to be, no real prospect of the removal of the plaintiff from Australia in the reasonably foreseeable future'. The government recognises and respects the constitutional jurisprudence of the High Court of Australia, which is reflected in this scheme. What we are proposing is modelled on the high-risk terrorist offenders scheme established under the former coalition government. Indeed it is precisely the sort of scheme that Liberal and National MPs and senators have been calling for. Above all, the proposed scheme reflects the expectations of the Australian community that all lawful mechanisms available to a government should be utilised to ensure community safety.

The government has already put in place a number of stringent visa conditions to manage risks to the community posed by certain noncitizens in response to the High Court's decision. These conditions underpin the ability to manage the NZYQ cohort in the community, and new powers support monitoring and compliance with the conditions. The government will continue to review these arrangements to ensure they remain fit for purpose, and we have committed to developing further amendments as required to ensure the ongoing safety of the community.

Australia is the greatest country in the world, and for decades we have welcomed waves of migrants who have made Australia home. Australians rightly expect to live in safety in the community, and the proposed package of amendments I am moving today focus on an assessment of the risk posed by a person who has been convicted of a serious violent or sexual offence, and on a determination to be made by the minister for immigration as to whether or not the strict conditions that can be imposed through our visa framework are sufficient to effectively manage that risk. Where the minister forms the view that the strict visa conditions available under the Migration Act may not effectively manage the risk to the community, the proposed amendments provide an option for the minister to approach the courts to seek the imposition of a community safety order. The application to the court must be supported by substantial admissible evidence of the high risk the noncitizen poses to the community.

Let me be clear. A community safety order would be made by a court, not the minister. Reflecting on the High Court's decision, the making of a community safety order would be—as it must be—a judicial decision, not an administrative decision. Under the amendments moved here today, a community safety order can be either a community safety detention order—that is, preventive detention—or a community safety supervision order. This would, in effect, allow for the making of an order that most effectively manages the risk to the community appropriately and proportionately to the circumstances. A community safety detention order will be used for the highest-risk individuals where the court determines that there are no viable conditions that could effectively manage the risk posed by the individual if they were in the community. Before making such an order, the court must be satisfied that the offender poses an unacceptable risk of seriously harming the community by committing a serious violent or sexual offence, and that there is no less restrictive measure that could effectively manage that risk. On the other hand, a community safety supervision order can be used to impose conditions on individuals where the court determines such conditions would effectively and appropriately manage the risk of the individual while they are in the community.

Before making a community safety supervision order, the court must be satisfied that each of the conditions, and the combined effect of all the conditions to be imposed on the offender by the order, are reasonably necessary, 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. The legislation must not specify or limit the conditions available to the court. Instead, it allows the court to tailor the order to the specific risk posed by the noncitizen to the community. Under this scheme, it is important to give the courts the flexibility to adapt the community safety supervision order conditions to the circumstances of each offender in order to support compliance, maintain proportionality and effectively protect the Australian community.

The amendments moved today also create offences for failing to comply with a community safety supervision order. Where a community safety supervision order is made, the order overrides all community protection related visa conditions previously imposed by the minister. In effect, those conditions are superseded by the decision of the courts. However, all national security and status-resolution related conditions would continue to remain valid and enforceable.

In the instance where the risk may not meet the threshold for applying to the courts for either of the community safety orders, the minister would have available the range of strict visa conditions, together with associated offences for breaching those conditions. These include, for example: conditions relating to monitoring and reporting; conditions related to contact with or proximity to minors; and conditions related to contact with a victim or their family. The bill retains criminal offences for breaching those conditions.

Under the amendments being moved today, a community safety order could be made for up to three years, and successive orders could be sought. Under the new community safety orders and ministerially imposed visa condition schemes, a requirement for an annual review of the risk posed by the noncitizen has been included. In addition, the noncitizen can appeal a decision by the court through judicial review mechanisms, or via a review of visa conditions through administrative appeal. In effect, the arrangements can endure for as long as the risk remains. Under these laws, all restrictions on the individual's liberty, whether they are in detention or in the community, must be proportionate to the level of risk the noncitizen poses to the community. The amendments also provide law enforcement with the necessary powers to monitor an individual, subject to a community safety supervision order, to ensure the individual is complying with the conditions imposed on them.

Let's not forget that, as I say, at all times over the last few weeks through this debate the safety of the community has been the utmost priority for the Albanese government. Not playing politics but protecting individuals—that's what we're doing through this strong legislation. It's about time the opposition stopped the politics.

4:59 pm

Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

I have to say on those last comments that, unfortunately, the only thing this government has done is play politics. Let's start with some of the comments that the minister has made in relation to NZYQ. Let's talk about the truth of NZYQ, who is the plaintiff in this matter and the person to whom the High Court decision actually applies. The coalition inherited from Labor 30,000 people who were put into the community on bridging visas. Why did that happen? Because our detention centres were full. Fifty thousand illegal maritime arrivals had arrived under the former Rudd-Gillard-Rudd government. We had a mess to clean up. We had to reintroduce temporary protection visas because—lo and behold!—the Labor government had abolished them.

In order to clean up this mess that we inherited from the former Rudd-Gillard-Rudd Labor government, it was a fact that, under migration law, assessments needed to be done on individual claims for protection. It was also a fact that you couldn't determine what to do with an individual until their status had been determined. In other words, you had to work out if they were found to be owed protection or not and whether they could be deported back to their country of origin. So, despite the rhetoric from the Labor Party today, at staged periods in time the minister did at law what he had to do and lifted the bar to allow a certain number of people to make this application to have their protection claims assessed. Just so everybody understands, this was not an issuing of a visa. Despite what the minister and Labor have been saying, there is a big difference. The bar was lifted, as we know, for large cohorts. We were dealing with 30,000 people who had been put into our community on bridging visitors because our detention centres were full. The minister did not deal with individual cases at this point in the process. It happens to be a fact that, without lifting the bar to enable people's claims to be assessed, we could not determine what to do with them. That is actually a legal fact. One of those potential options was deportation if they could be returned to their country of origin.

So it is false to suggest—the Labor Party know this, but it doesn't stop them—that the Leader of the Opposition, Mr Dutton, intervened to grant NZYQ a visa. That is just not true. The facts do not sustain what the Labor Party are saying. The Prime Minister, Minister O'Neil and Minister Giles, quite frankly, should be ashamed of themselves for trying to mislead the Australian public.

Without a doubt, though, these types of comments were an embarrassing attempt to try and distract from the complete incompetence of the Albanese Labor government when it comes to the handling of detainees being released into the community. This also happens to be a fact: NZYQ would not be in Australia were it not for Labor's failed border protection policy which allowed 50,000 arrivals on more than 800 boats.

Let's put on the record what actually happened despite what the minister and the Australian Labor Party have been misleading the public with. What did Mr Dutton, as the relevant minister at the time, actually do? He allowed a process to take place for those who had arrived under Labor. Remember that there were 50,000 illegal maritime arrivals, more than 1,200 dead at sea and thousands of children placed into detention because of the failed border protection policies of the previous Labor government.

Mr Dutton allowed a process to take place, where those who arrived under Labor could apply to have their claims for protection assessed by the Department of Home Affairs, Immigration and Border Protection. Despite what Labor said, the fact remains there was no intervention and no visa was ever granted to this individual. Labor were either misleading the Australian public or, alternatively, perhaps they don't understand immigration law. NZYQ arrived, lo and behold, in September 2012 under the former Labor government. He arrived on a boat. He fell into the 13 August 2012 to 1 January 2014 fast-tracked cohort. We were cleaning up the mess left to us by the former Rudd-Gillard-Rudd governments. That fast-tracked cohort consisted of 24,500 illegal maritime arrivals and they all had the bar lifted en masse because, under that law, that is what the minister had to do. You couldn't determine what to do with an individual until their status had been determined; hence the minister had to lift the bar.

Cleaning up the mess even further, though, in 2015-16, the minister exercised these power on, lo and behold, 24,120 occasions, covering 23,014 non-citizens. So under sections 46A and 46B of the Immigration Act, the minister may exercise his powers to lift the legislative bar which prevents certain non-citizens from making an application for a visa. Where the minister exercises these powers, the minister specifics a class a visa for which the person may apply. So, again, despite everything that the Labor Party has been saying—clearly, desperate, no two ways about that, but they know that; that's life with the Australian Labor Party—they are quite happy to spread mistruths, as long as the mistruth fits the facts and the narrative that they want to tell. Let's not worry about what the actual facts say. In fact, God forbid the Australian people ever know what the actual facts are under this government, good grief. It is false to suggest, as I said, that Mr Dutton intervened to grant NZYQ's visa. He was cleaning up a mess left by the former Labor government in relation to the in excess of 50,000 people who had arrived here by boat.

I also have comments that I will make the next time I'm given the call in relation to an amendment that I will be moving. But in the first instance, Minister, assuming this bill is passed—and the coalition, as we have indicated, will be supporting this bill through the Senate—does the government have an indication of how many individuals released from detention as a result of the High Court decision will meet the threshold to be redetained or to have a supervision order applied?

5:08 pm

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

Rather than a question, this is a political attack that the opposition has been engaging in over the last few days. They seem to not appreciate the central point of the High Court judgement, which is that the decision as to the detention of one of these individuals is a matter that must be made by a court rather than by a minister, so it would be completely irresponsible to ignore the High Court ruling for me or any other minister to give the number of people who are expected to be covered by this regime, because we would then be getting back to exactly situation that existed under Mr Dutton as the minister, which was found to be unconstitutional and unlawful by the High Court.

The whole point of the decision of the High Court was that decisions as to the detention of these individuals must be made by a court rather than a minister. On a number of occasions over the last few days, in their desperate desire to score political points, the opposition have either wilfully ignored the High Court judgement or failed to understand it, and that is exactly the problem that got us where we are. The problem that we've had is either the former government's wilful ignorance of the law or their contempt for it and desire to override it.

As to the number of people who are expected to be captured by this new regime, I'm not in a position to give that number, because that would be flying completely in the face of the High Court reasoning. What I can say is that the Department of Home Affairs will engage with law enforcement authorities in relation to each NZYQ decision-affected noncitizen who has committed serious violent or sexual offences to determine the risks they pose to the Australian community and consider making applications to the court for orders based on the available evidence. I'm sure Senator Cash is aware of the eligibility requirements for someone to be issued with one of these orders. I wouldn't expect that it would be every single individual in the cohort, but these sorts of orders could be made in relation to people who have, for example, committed serious, violent or sexual offences, and there are other eligibility criteria that need to be fulfilled before one of these orders can be sought by the minister or granted by a court.

As I've said before, this regime that we are putting forward is modelled very closely on the high-risk terrorist offender regime that the former coalition brought in. Just as that regime did not allow for the preventive detention of every single convicted terrorist offender or other category of offender—it applied to particular types of people rather than an entire cohort—I would expect similarly that a regime that here is based on and modelled on the coalition's regime for high-risk terrorist offenders would apply to some but not all of the people who have been released into the community as a result of the High Court decision.

5:12 pm

Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

That is a complete misrepresentation in relation to what we're asking you about. The question I asked was: how many in the cohort have committed a serious, violent or sexual crime that has a sentence of seven years of more attached to it? In other words, how many of the 147 rapists, paedophiles and murderers and the contract killer that you have let out of detention have committed a serious violent or sexual crime that has had a sentence of seven or more years attached to it as a maximum? You see, if you don't fall within the first limb, you don't even make it to the second.

That now gives me an opportunity to talk about the amendment that we will be moving for this exact reason. The amendment that we are moving is a straightforward amendment. It is about being straight with the Australian people, because, quite frankly, that is what they deserve. But, based on that last decision from the minister, there's nothing to see here. We don't even know how many of the 147 fit within the first limb of our test. I hate to tell the Australian people this, but if you're not in the first limb of the test—guess what?—you're out; the preventive detention order does not apply.

The Australian people are entitled to know who is being released into their communities. The fact of the matter is: at this point in time, we only know the tip of the iceberg. We know that the government has released paedophiles, murderers, rapists and a contract killer. Who else? Who are the serious criminals the government has decided to release? Let's be clear: every one of those released from detention was released because of a decision by this government, and the overwhelming majority were released before we had even seen the High Court's reasons. It was a knee-jerk, panicked response, and for the vast majority we don't know what they've done or why the government released them.

What is worse is that, based on the answer to my question, the minister himself doesn't know—good grief! The government doesn't know, of the 147 they've released into the community, how many are going to even make it into the first limb. The first limb is very important. I would have thought the minister, perhaps at the instruction of the Prime Minister, would have already done an assessment of the 147. How many of those 147 even meet the first-step threshold the government is putting in place? Is the answer zero? I don't know; the minister hasn't told me. Maybe the answer is zero. Is it three? Is it four? We don't know. That is the basic question we would like the government to ask in the first place.

This is an amendment, in terms of what I will have to now move, that will require the government to tell us. It is very simple. It accords with the standard the government has set for itself. This government talks a lot about openness and transparency, but, I have to say, it doesn't talk the talk, unfortunately. If the government is prepared to live by the standard it set itself, it will support the amendment the coalition is putting forward. As I said, it's very simple. Our amendment will require the minister to prepare a statement of reasons for every detainee whom they decide to release as a result of the NZYQ case; that is currently at 147. It says the minister should prepare that statement and then table it within the parliament within seven days. It's pretty simple. When Minister Giles decides to release someone, he should tell Australians why. The only thing the government has said to date is, 'Oh, it's because of the High Court and the decision in the High Court.' Seriously? Tell us how the High Court decision applies to each of the 147 that you have released.

The minister should be clear about the visa that has been granted. He should explain to the Australian people what conditions have been imposed. He should reveal their visa history. He should be upfront about the character concerns of the person who, like the 147, is currently living in the Australian community. The Australian public are entitled to know about their past convictions both here in Australia and overseas, and the minister should set out in detail the basis on which he determined there was no real prospect that the person would be removed from Australia in the reasonably foreseeable future—which is the NZYQ case. Under our amendment we're going to help the government help the Australian people understand why they are doing what they are doing. Under our amendment we would learn whether or not the incompetence displayed by the Albanese government in the NZYQ case is a pattern of behaviour.

Let's reflect on what happened in that case. The government, as I said, made two concessions. It conceded two important facts, and that terminology—'important facts'—is not mine; it is from the High Court itself. The court put significant weight on those two important facts the government conceded on 30 May. The first concession was that NZYQ could not be removed from Australia. The second concession made by the government was that there was no real prospect of the plaintiff being removed from Australia in the reasonably foreseeable future. The government made those concessions in May, lo and behold, even though they hadn't actually finished making inquiries about whether or not he could be resettled. One might ask: why in God's name would the government have made those concessions? The Labor government made those concessions as at 30 May. But then we get the High Court reasons, and this is what they reveal. When they realised the magnitude of their stuff-up in August, they then started making inquiries with Five Eyes partners.

Let's be clear, for the record: this is what happened under this incompetent government. They conceded that there was no way NZYQ was ever going to be removed from Australia, because no-one would take him. After making that concession, which forced the court's hand, they decided to go back and check. Maybe this case would have been entirely unnecessary. Maybe the result could have been avoided. Was this a pattern of behaviour? Did they do this in other cases? I don't know. The Australian people don't know. But I can tell you from the feedback I've been getting into my office and from reading comments online across all the newspapers, the Australian people would like to know: how many people were released without even checking if other countries would take them?

Let's see if this government can meet the commitment to transparency and openness that it loves to trumpet—a commitment, I might say, that has only ever been honoured in the breach. Australians know that in the ordinary course they will struggle to get information out of this conniving, secretive, hypocritical government. Let's hope the events of the last four weeks have made them see the error of their ways. I hope they understand how badly they have lost the trust of the Australian people.

I say again to the Australian Labor Party: we are giving you an opportunity. Once again, we are here to help you, just like we were on your last piece of legislation. We proposed six amendments, even though you said it couldn't be done, which you accepted. We are once again cleaning up your mess. We are giving you the opportunity to work with us, to make sure the people who are being asked to bear this risk—the Australian people—actually understand what and who is coming down the line. They need to know who is being released. So the question is, will the government support our very simple amendment? Or are you basically saying 'stuff you' to the Australian people? Are you saying, 'We will not tell you what we have done'? Are you saying, 'We are prepared to expose you to a risk'? In fact, given the last 48 hours, I would think it's a pretty significant risk: allegations of a serious sexual assault and then allegations in relation to a minor. But they're not prepared to tell you about the risk.

Again, I ask the minister: how many in the cohort will fit into the first limb of the test the government has set out for itself?

5:22 pm

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

I refer to my earlier answer, in which I made very clear a point Senator Cash continues to not seem to appreciate, which is that we got to this mess because Mr Dutton and the coalition implemented an unconstitutional and unlawful detention regime in which the then minister, Mr Dutton, decided who was detained and who was not. That is exactly what the High Court has found to be unconstitutional and unlawful. The regime that we're putting in place will leave it to the court to make that decision. Senator Cash can ask as many times as she likes how many people this will apply to, but I'm not going to give a number, because that is exactly the problem we are trying to fix—ministers dictating these terms rather than courts.

I know Senator Cash and the coalition have a long history of believing governments can operate outside the law. We saw that with robodebt, and we saw the consequences of that. But this government will follow the law and we will follow the High Court reasoning, whatever we might think of it, and we will deliver laws that do stand up in court. For that reason, I'm not going to be any more specific about this issue.

During that contribution Senator Cash moved some amendments, so I might just take the opportunity to put the government's position on the record. We will be opposing Senator Cash's amendments, because, simply put, they are unworkable. We appreciate that there is a desire for transparency around the operation of this regime. That is why I refer Senator Cash to clause 395.49 in the amendments, which requires the immigration minister to, as soon as practicable after each 30 June, cause a report to be prepared about the operation of this new division, which sets up the preventive detention regime and the community safety order regime, during the year ended on that 30 June. The clause in the amendments gives some level of detail about what that report must include. This is an annual report that will need to be tabled by the immigration minister to provide a level of transparency around the operation of this regime. Subsection 2 of the clause says that report must include the number of each of the following:

(a) applications for each kind of community safety order made during the year;

(b) each kind of community safety order made during the year;

(d) applications for review of each kind of community safety order made by the Immigration Minister, or a legal representative of the Immigration Minister, during the year;

(e) each kind of community safety order affirmed during the year;

(f) each kind of community safety order varied during the year;

(g) community safety orders revoked (including by operation of this Act) during the year.

So the very amendments that we are moving require an appropriate level of transparency from the immigration minister each and every year about the operation of this regime, but they do so in a workable manner that won't jeopardise, for example, the potential resettlement of some of these individuals.

As I said in my earlier contribution, one of the reasons we are in this situation is that, the entire time he was the Minister for Home Affairs, Mr Dutton failed to resettle any of these individuals. We know that the former government had a policy of not taking up the resettlement deal that was on offer from New Zealand, for example. That belligerence and that refusal to work with other countries around resettlement is one of the reasons some of these individuals remain in detention. We don't want to jeopardise that by providing some of the information that Senator Cash's amendments require.

I will take you through the Senator Cash's amendments. Proposed section 76G(1)(a) and (b) in her amendments would cover only those visas granted between 8 November, being the date of the High Court decision, and 18 November, which is the commencement date for the Migration Amendment (Bridging Visa Conditions) Act 2023. Proposed section 76G(1)(c) would cover all grants under regulations 2.25AA and BB. I noted that regulation 2.25AA existed prior to NZYQ, and this provision could be interpreted so as to apply to any visa ever granted under regulation under 2.25AA, noting that that provision was inserted in 2013 and has been used for noncitizens outside the NZYQ cohort. Proposed section 76G(2)(f) requires the minister to table information about the basis on which there is no real prospect of removal. There are legitimate concerns that the minister being required to provide information about the potential refoulement of a noncitizen or the noncitizen's protection claims could further jeopardise removal efforts.

As I say, one of the problems that we're dealing with at the moment is the failure of Mr Dutton to resettle any of these individuals that we're talking about. The last thing we want to do is jeopardise the potential future resettlement of any of these individuals by requiring the minister to provide information which could jeopardise those removal efforts. Similarly, providing details of how and why a person cannot be removed would have potential adverse impacts on the relationship between Australia and relevant countries who have been approached and/or the noncitizen's home country. This could also prejudice future negotiations on issues, including on returns, and it could also affect Australia's international relations. Proposed section 76G(3) provides that the statement—that Senator Cash's amendments require—must not include personal details about the noncitizen. However, the breadth of information required to be given under 76G(2) would be so broad as to easily enable the identification of the noncitizen. For example, the person's immigration history would presumably include previous dates of entry and departure from Australia. These significant issues with releasing information that would potentially identify them may therefore constitute a breach of the Privacy Act requirements. Listing country of origin or citizenship is sensitive because some are from very small countries, but for some the nature of the crime and other elements being specified by the opposition would also potentially allow for the identification of the person being released.

It's for these reasons that we'll be opposing the amendments. We're trying to strike the right balance in terms of transparency by requiring the immigration minister to table that annual report that's required under clause 395.49, but we think it would be impracticable and unworkable and could jeopardise future removal efforts if we were to agree to the amendments being moved by Senator Cash.

5:30 pm

Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

I'll just make a few comments, and I know Senator Hanson also has some questions. In terms of what we are seeking, all we're asking the government to release is consistent with the types of details you would ordinarily expect to see from a court or the AAT. This government clearly has a perennial problem with detail.

Proposed clause 395.49 goes to the actions of the minister. It tells the Australian people nothing about the details of who the Albanese government has decided to release. It does not say the things that we are asking about. It does not say what offences have been committed here or overseas. It does not say what efforts the government has made to try and resettle these individuals. It does not tell the Australian community about the risks they will need to live with—because that is the fact: the Australian community are living with these risks. Quite frankly, if this is the best the government can do in terms of transparency, I don't believe it passes the pub test. But the government have said they will not be supporting our amendment, which was all about transparency with the Australian people.

In relation to the question that I asked the minister, the definition of 'serious violent or sexual offence' is added to this bill, and it provides:

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—

and then it takes you through a series of offences—

(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) … child abuse material—

et cetera. I would have thought the government already would know how many of the 147 are going to make that first limb, but clearly they do not. So I will ask the minister: when were drafting instructions given in relation to this bill, and when did drafting on the bill actually commence?

5:33 pm

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

I'd have to take on notice the precise date that drafting instructions were first issued—I think that was the question—or that a request was made for drafting. But I'm advised that policy design work on this matter began before the High Court decision was handed down and before the High Court reasons were handed down. I'd have to take on notice the precise date for drafting instructions, but it's also worth remembering that this bill has been prepared in stages. The bill that we're debating tonight contains the amendments that were passed in the House of Representatives last week despite the opposition of the opposition and the Greens, who voted together to stop us making those laws stronger. Now, of course, we are adding to that the community safety order regime. I suspect what we will find when I come back to you is that drafting instructions were issued at different periods of time because the bill has been prepared in stages. I think it would be reasonable to think that the drafting instructions that set up the strengthening of the laws that went through the House of Representatives last week probably were issued before the drafting instructions for the community safety order regime.

Hollie Hughes (NSW, Liberal Party, Shadow Assistant Minister for Climate Change and Energy) Share this | Link to this | Hansard source

Senator Shoebridge, I know you're jumping up, but Senator Hanson jumped previously, so, if you don't mind, I'll go to Senator Cash and Senator Hanson and then you. I'm just letting you know who I've seen as we've gone round. So, just for the order of the chamber, we'll go to Senator Cash, to Senator Hanson and then to you. That will save you jumping next go, because I know.

5:35 pm

Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

I have a very specific question. Given the bill last week did not have the preventive detention scheme in it, when were drafting instructions given in relation to the amendments on sheet SY101, which would establish the preventive detention regime, and when did the drafting commence?

5:36 pm

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

Again, I'll have to take the precise date on notice, but, as I said in my earlier answer, policy design work around the response to the High Court decision actually began before the High Court decision was handed down. I am happy to come back to you on notice about the date that the drafting instructions were issued for the community safety order regime, but it would be reasonable to expect that final drafting instructions were issued after the High Court reasons, because it was necessary to have those reasons in order to make sure that this regime was constitutional.

Pauline Hanson (Queensland, Pauline Hanson's One Nation Party) Share this | Link to this | Hansard source

Can the minister please tell me: when was it brought to your attention that NZYQ was challenging the Minister for Immigration, Citizenship and Multicultural Affairs?

5:37 pm

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

Senator Hanson, I presume what you're really asking is when that was first brought to the attention of the minister rather than me personally—or are you talking about me personally?

Pauline Hanson (Queensland, Pauline Hanson's One Nation Party) Share this | Link to this | Hansard source

The attention of the government.

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

Well, I suspect it would have been when the case was first filed in the court, and I'm happy to come back to you on notice as to when that was.

Pauline Hanson (Queensland, Pauline Hanson's One Nation Party) Share this | Link to this | Hansard source

Can you give me any indication? Was it this year? Was it last year? Was it prior to you coming into government?

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

I understand that the case was filed this year.

5:38 pm

Pauline Hanson (Queensland, Pauline Hanson's One Nation Party) Share this | Link to this | Hansard source

As to this whole case, what I have here is:

On 8 November 2023, the High Court answered questions of law reserved for its consideration in a special case to the effect that ss 189(1) and 196(1) of the Migration Act 1958 … on their proper construction, authorised the plaintiff's detention as at 30 May 2023 and 8 November 2023, but the sections are beyond the legislative power of the Commonwealth Parliament insofar as they applied to the plaintiff as at those dates.

What I would suggest to you is that, based on the fact that this was brought to the courts earlier this year, you would have been aware of it if you were right across it and knew what you were doing. As to this whole case and the determination that was brought down by the court, it states here:

The Court held that ss 189(1) and 196(1), as applied to the plaintiff, contravened Ch III of the Constitution because the plaintiff's detention was not reasonably capable of being seen as necessary for a legitimate and non-punitive purpose in circumstances where there was no real prospect of the removal of the plaintiff from Australia becoming practicable in the reasonably foreseeable future.

This has, in a couple of other cases, been brought before the courts well before this. One was the Chu Kheng Lim case, and there was also a case in 2004 where the courts held that you can't keep people in detention for an unlimited period of time if they can't practicably and reasonably be relocated or sent back in the foreseeable future.

Basically, when this was brought to your attention, you'd been in government for nearly a year. The fact is that you didn't understand that in two previous judgements your case was not represented properly, and that's why the judgements were brought down. You were unprepared. Actually, you've been caught with your pants down. To sit here and listen to you accuse Peter Dutton, the previous Minister for Home Affairs, for what happened with this man is completely misleading the people and this parliament. You were caught with your pants down. You didn't know what was happening. You were forewarned of what to expect with this whole judgement.

What I want to ask you is: from your time of taking over government in May 2022, what process or steps did you take to have this man deported?

5:41 pm

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

Thanks, Senator Hanson. We're just trying to get an answer to your specific question, but I have to disagree with your assessment of the situation. What I think you've just argued is that, because of an earlier judgement—I'm not sure which judgement or which year it was in—a judge apparently, according to you, cast some doubt on whether it was legal to indefinitely detain these people, and you're saying that because of those previous comments this government should have known that it wouldn't win this case. I can't really see how that puts Mr Dutton in a better position, because he and his government were in power for 10 years and followed the same practice that we followed for, as you put it, about a year before this case started. So, if you're saying that this government made the wrong call to comply with the earlier ruling of the High Court in the Al-Kateb decision—I think that's what it's called—back in 2004, then I would expect that you would be equally critical of Mr Dutton for having done exactly the same thing.

Be that as it may, we make no apologies for having opposed this case in the High Court. It was brought, as I say, this year. We argued that the individual involved should remain in detention. That had been the understanding of the Australian law for at least 20 years, through both Mr Dutton's period in office and our 12 months or so before the case started, and we continued to argue that it was lawful to hold this individual in detention. The High Court, obviously, found a different way and they overturned that judgement from about 20 years ago. So, given we're a government that complies with the law, we've now followed the law and released that individual and the other people who were caught up in it.

I'm not sure that it's wise for me to give you the names of countries that were approached about the potential resettlement of this plaintiff. What I can say is that there were about six different countries that, since we came into government, we approached to resettle this individual. I haven't been advised of this, but I take it that the answer in each case was no. I can't speak to what efforts were made by Mr Dutton or the coalition to resettle this individual when they were in power, but what we do know is that when they lost office these 147 people had not been resettled. What we also know is that the former government rejected the offer of resettlement that New Zealand had put on the table for a whole bunch of different people. Perhaps, if they hadn't been so belligerent about that, we wouldn't be in this situation.

5:44 pm

Pauline Hanson (Queensland, Pauline Hanson's One Nation Party) Share this | Link to this | Hansard source

Minister, you know that a lot of these people will not be taken back by countries if they have criminal offences against them. These people include paedophiles, sexual offenders, rapists and murderers. You know the other countries won't take them. You know that the coalition government actually did try to get these people resettled. You know that New Zealand wouldn't take criminals either. You know that to be the truth, and you keep passing the buck, because you've tried yourself, and it hasn't worked. You haven't been able to do it.

What I would like to ask you about now is the one case of NZYQ. The decision was made by the High Court regarding his case—one plaintiff. Why did you release the 80 immediately after the decision came down and then more since? Why did you release them?

5:45 pm

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

The short answer is that this government complies with the law, whether it's law that's written by the parliament or law that's decided by courts. I know that is an unusual situation in Australia, because we did have a government that operated outside the boundaries of the law—for example, with robodebt—but this government takes the law seriously and complies with the law. The High Court made a decision that was about one individual and their case, but the decision that they made applied to other people in the same circumstance. If we hadn't released those people, we would be facing claims for compensation for unlawfully detaining those people. I know you've often got a lot to say about wasting taxpayers' money, and I don't think it would be a great idea to waste taxpayers' money paying compensation to people who are illegally detained. That's what we would have been doing if we had ignored the High Court ruling and continued to detain those people.

I will just respond to your comments earlier on. You seem to think that Mr Dutton and the coalition attempted to resettle these people. I don't think that has been said by anyone, so I don't know if that's right or not. Secondly, on your point about resettling people in New Zealand, you would find—and I'm happy to get you the numbers—that, since this government came to power, reached an agreement with the New Zealand government and took up the offer of the New Zealand government to resettle people who were in detention, we have successfully done that. New Zealand has accepted people who were previously detained in Australia but whose cases the former government wasn't prepared to take up.

5:47 pm

Pauline Hanson (Queensland, Pauline Hanson's One Nation Party) Share this | Link to this | Hansard source

The people that were resettled in New Zealand were probably not criminals—not to the same extent as those you have released. You never even waited. After the High Court decision was handed down, you never waited to see what the determination was and the full reasons for their decision. That came nearly two weeks later. You acted to release these people into our society, knowing that they were criminals. You have made it unsafe for a lot of people, and the Australian people are concerned about who is now living amongst them. We've seen the cases of the ones who have now been caught because they have committed crimes. Since you released these people from the detention centres, the parliament passed a law that they should wear ankle bracelets. But isn't it funny that a few of them said, 'We're not wearing them'? One actually absconded; he's gone. Another three refused to put them on. Yet what happened to them? Why weren't they held? Why weren't they detained? The law says that they should wear the ankle bracelets. You put that in there. That was an agreement between the government and the opposition, and I supported it. But no. You released them into society without the ankle bracelets. You're really worried about the Australian people, aren't you?

What I don't understand now is the decision by the High Court and your inaction in relation to making sure that society was safe after you released these people. Minister, where does this now leave us? Because of your inaction, we've now got numerous boats coming across to Australia. One has landed on our shores. I know that other boats are being turned back. One boat has landed with 12 people in it claiming refugee status in Australia. Will the High Court ruling now impact those people? How long will you be able to keep them in detention—until we rule whether they are really refugees or economic refugees, whether they are of good character, have jailable sentences or are criminals? What do you intend to do about this? If they are of the same character as the others, what is now going to happen to these illegal boat people who, under your government, are going to cost us billions of dollars? Are you in the same boat—pardon the pun—where you cannot contain them for an unreasonable amount of time?

5:50 pm

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

Again, Senator Hanson, the short answer is no. First, our government remains absolutely committed to the policies underpinning Operation Sovereign Borders. Of the small number of people who have attempted to come to Australia by boat since we were elected, each of those people is either awaiting return in Nauru, has been taken to Nauru or has been taken back to their home country. To suggest otherwise is not true. In fact, this government has invested more in Operation Sovereign Borders than we saw under the coalition.

Your question really goes to whether this High Court decision will apply in some way to people who seek to come to Australia by boat. Again, they're completely different concepts. This High Court decision is about a relatively small group of detainees, people who had already come to Australia but, for one reason or another, were not able to be taken back to their home country in the reasonably foreseeable future. It was about the decision of governments to detain those people indefinitely. That's a particular category of people that is different to anyone who seeks to come to Australia by boat. As I say, this government's policy is that anyone who seeks to come to Australia by boat will be either turned back or taken to Nauru.

5:52 pm

David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source

I have a number of questions for the minister in relation to the assessment of unacceptable risk for the community safety order. Minister, you say that there was required to be substantial, admissible evidence for the grounding of a community safety order. Can you advise the House which terrorism risk assessment instruments will be used by the government in presenting that evidence?

5:53 pm

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

Senator Shoebridge, I will share the information I have with you, and hopefully, putting it together will answer your question. You're right; the scheme that's being proposed is limited to those who have been convicted of a serious violent or sexual offence and pose an unacceptable risk of harm to the community by committing such a crime again. An assessment of the risk that an individual poses under this regime is based on expert evidence from relevant officials such as psychologists and psychiatrists with experience dealing with serious sex and violent offenders.

There is a significant and well-developed body of research that has guided the development of assessment tools relating to violent and sexual conduct which have been utilised in similar regimes by the states and other countries. It's the intention of the Commonwealth to work with jurisdictions on the implementation of the proposed regime, including by identifying appropriate risk assessment tools. There are a number of state and territory regimes for the preventive detention of violent and sexual offenders, as well as a number of international examples. That's why the Commonwealth will work with states and territories and international partners to understand their experiences using risk assessment tools and expert evidence. There are existing tools for violent and sexual offenders which can be used to guide an expert assessment of their probability of reoffending and to determine what type of intervention approach would be most appropriate. The Commonwealth will closely engage with practitioners and experts to determine the most accurate and appropriate tools to use.

5:55 pm

David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source

Is it seriously the case that you're rushing through this legislation and you're not able to identify what risk assessment tools you're going to be using for the purposes of bringing—no doubt, in the days that follow the legislation passing—applications to the courts for community safety orders? Having gone through this charade of rushing everything through, are you suggesting that, while it's still warm on the photocopier, you're then going to engage in some form of consultation process with the states and foreign jurisdictions to find out which risk assessment instrument you're going to use, or is the truth of the matter that you're going to be using the VERA-2R assessment tool and you just don't want to say it? Is that the actual truth? Surely you can't be saying that you're going to rush the legislation through and then sit down and consult with Albania about what tools they use. That can't seriously be the government's position. So are you going to be using the VERA-2R tool? If you're not going to be using the VERA-2R tool, tell us which tool you are going to use for risk assessments under this legislation.

5:57 pm

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

Senator Shoebridge, I do reject your characterisation of what we're doing here. I know the Greens opposed the legislation that we initially introduced and passed here last time we sat. I made the point that, in opposing that legislation, the Greens seemed not to be concerned with community safety. I would have thought that the fact that we have now seen three of these individuals be either arrested or charged with new offences would have underlined the importance of passing this legislation as quickly as possible to keep the community safe. I don't know what other evidence the Greens party requires that would demonstrate the urgent need to introduce this legislation. Whether assessment tools have been finalised or whether they are days away from being finalised, that shouldn't get in the way of this parliament putting in place a legislative regime that is designed to keep the Australian community safe, especially since we are approaching the end of the parliamentary year. In this government's view, there is no time to waste, and that's why we've been keen to get this legislation passed as quickly as possible. But, if the Greens party want to see a situation go on where we don't have a preventive detention regime or community safety orders regime in place and if they're content to see more reoffending by these individuals, then that's something you're going to have to justify to the Australian community.

But your question relates specifically to the VERA-2R tool. Just before I come to that, there are tools that are used by states and territories overseas such as Static 99 and ARMS, and they have been proven to be valid and reliable in supporting professional assessments of reoffending potential. There's significantly more data in relation to violent and sexual offenders, compared with terrorist offenders, and that has supported the further development of these tools. In relation to the VERA-2R tool that you've asked about, as I'm sure you are aware, Senator Shoebridge, that is a structured professional judgement tool used in law enforcement, correctional and intervention program contexts in Australia and internationally to assess the likelihood of a person's risk of engaging in violent extremism. It's one of the tools that have been used and relied on by experts to assess individuals for division 105A proceedings under the existing high-risk terrorist offenders regime.

But VERA-2R is a tool adapted to assessing violent extremism and, whilst relevant in respect of terrorist related violence, it is not adapted to assessing the risk of the offender committing a serious violent or sexual offence. I think that you can read into that that it's not the intention to use that tool for this regime, given that tool is specifically designed for the assessment of risk of committing terrorist related violence. But, as I say, the Commonwealth will review all available tools and identify which are appropriate for use to support the community safety order regime. I really would have thought that recent days would have made the Greens party reconsider its position in saying that we don't need to get moving on this legislation.

6:00 pm

David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source

What do you say to the critique of the very recently former Independent National Security Legislation Monitor, Grant Donaldson SC, in relation to the current regime of preventive detention:

… these laws have made us a coarser and harsher society. I doubt that anyone knows whether they have made us safer.

Do you accept Mr Donaldson's assessment of preventive detention?

6:01 pm

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

I respectfully disagree with Mr Donaldson's assessment of this. He's obviously entitled to his view, but this government does believe that the regime that we're putting in place is necessary to protect the Australian public, just as we supported the implementation of a high-risk terrorist offender preventive detention regime. Community safety orders are designed to ensure the protection of the community from a small category of noncitizens—that's what it's being used for in this legislation—and that is a category of people who have been convicted of a serious violent or sexual offence. Similar regimes exist in the states and territories. The scheme is targeted at individuals who pose an unacceptable risk of harming the community by committing a serious violent or sexual offence and who are noncitizens in respect of whom there is no real prospect of their removal from Australia becoming practicable in the reasonably foreseeable future.

6:02 pm

Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

In the final moments, I just want to take the minister back to the answer that he gave Senator Hanson, because it's worth digging into what the minister said in response to her questions about the need to release the detainees. On 8 November, the High Court issued a writ of habeas corpus in NZYQ, and we've never disputed that you needed to comply with that order. That's clear. Of course you did. And, of course, the principles laid down by the High Court in the NZYQ case will apply more broadly. That is the nature of High Court reasons. The High Court will not grant special leave to appeal unless the case is significant across the board.

But the thing that the government is trying to hide is that it is dependent on a government assessment. I would put to you that the misleading part of the comment that you gave to Senator Hanson is this: the decision to release, in each case, is a government decision. Let's just assume for a minute—and I can't say that this is the case—that each of the 147 detainees was required to be released. If that were true, it should have involved 147 decisions, each of which involved the careful application of the principles laid down by the High Court over 74 paragraphs. It should have involved the facts, the history of the matter and the prospects of removal, in light of the principles articulated by the seven justices of the court. But the only thing we can say for sure is that in the vast majority of cases that didn't happen. We know that, because at the time the government released the vast majority of detainees it did not have the court's reasons. The Attorney-General can make all the statements that he wants and then table them in the Senate, saying, 'Oh dear, the High Court made me do it,' because that is literally what we have been hearing from the government day after day, excuse after excuse after excuse—the Attorney-General: 'It isn't my fault;' the Prime Minister: 'It isn't my fault.' Meanwhile, the Australian people will be living with paedophiles, murderers, rapists and a contract killer who have no right to remain in Australia. That is a fact. And they were released because the Albanese Labor government—the Prime Minister himself, Minister Giles and Minister O'Neil—bungled the case in the High Court and then panicked and botched the response. The record should be crystal clear that this is a debacle of your own making. The question before we finish is: what is the status of the 340 additional individuals who were referenced in the High Court hearing?

6:06 pm

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

(): Again, I am really surprised that the shadow Attorney-General, someone who aspires to be the Attorney-General of this country—the first law officer of this country—and, indeed, who has already been the Attorney-General continues to make an argument that the Australian government should not comply with a High Court ruling. It's an extraordinary proposition that Senator Cash has been advancing over the last few days. I can understand it, given that Senator Cash served in a government that delivered us robodebt, an illegal system. We know that Senator Cash has a history of not personally cooperating with law enforcement when it comes to police investigations. A deputy commissioner of the Australian Federal Police said as much in estimates a few years ago.

I know Senator Cash is defensive about that, but it's there for all to see. Senator Cash and the coalition have never followed the rule of law. I notice that a former Attorney-General, Mr Brandis, recently had something to say about the need for governments to follow the rule of law. Sadly, it would seem that Mr Brandis's view is not upheld within the current coalition.

Mr Dreyfus, an Attorney-General who does believe in complying with the law, issued a statement today. I might just read from it so as to clarify this situation once and for all. Mr Dreyfus said:

The Government is committed to protecting the safety of the community and acting in accordance with the law.

Our response to the High Court's decision in—

the NZYQ case—

has at all times been guided by these fundamental principles.

The High Court determines the meaning of the Australian Constitution—not politicians.

The High Court has held that, if a non-citizen has been refused permission to remain in Australia, and there is no real prospect of removing them from Australia in the reasonably foreseeable future, the non-citizen cannot lawfully be held in immigration detention …

That finding was in the NZYQ case. The statement continues:

In NZYQ, the High Court made a decision that did not only apply to the plaintiff in that matter. Rather, the Court set a new limit on the Parliament's power to make laws requiring or authorising the detention of any non-citizen who is relevantly in the same position as the plaintiff …

As a result of the High Court's decision, the continued detention of any NZYQ-affected person would be unlawful.

That is what Senator Cash seems to be arguing that we should keep doing. Mr Dreyfus went on to say:

The Department of Home Affairs undertakes expert assessment of whether a person is an "NZYQ-affected person". If and when it is clear that a person in immigration detention is an NZYQ-affected person, the Department must immediately take steps to secure the person's release from detention. There is no legal basis on which the Government can delay releasing the person until, for example, a court orders the person's release.

Moreover, whether a person is required to be released turns solely on whether they fall within the limit identified by the High Court's order in NZYQ—and not, for example, on their personal circumstances including any criminal history they may have.

It is a fundamental principle of our system of law that the government cannot deprive a person of their liberty without positive authority conferred by law. Following the High Court's decision in NZYQ, there is no power to detain the affected non-citizens under the Migration Act. There is no power for a minister to direct an officer to detain the affected non-citizens.

For these reasons, any delay in releasing an NZYQ-affected person could expose the Commonwealth and individual officers to liability for (among other things) false imprisonment. Any officer who continues to detain a person who they know is an NZYQ-affected person may also be acting in breach of the APS Code of Conduct and be liable to disciplinary action as a result.

So every time Senator Cash and her colleagues continue mounting this argument that the government was not required to release the people that we have released, what she and the coalition are effectively saying is that the Australian government should continue detaining people that we have no legal right to detain.

The High Court has made the law clear and governments, I would have thought, should follow the direction of the High Court. I think it is slightly concerning that the opposition are suggesting that the kind of government they would operate would be one that would ignore the High Court and would detain individuals without any legal power to do so. That is a very worrying suggestion, and I would urge Senator Cash to reconsider that position.

While I'm on my feet, I might just point out that Senator Cash, Mr Dutton and their colleagues have made a lot of hay over the last few weeks about the individuals we are talking about. You would think that their record in government around immigration detention has been without blemish and that they never exposed the Australian public to any risk. Well might I remind the opposition that their record was somewhat different to how they might like to remember it. The New Daily in April 2018 reported:

Detainees at immigration detention centres on Australian shores have successfully escaped more than 80 times since July 2013, government figures reveal.

… the total number of detainees who escaped detention during the period would be higher because some reported incidents have involved more than one person.

So even in 2018, five years into the coalition government, there had been more than 80 escapes from immigration detention centres. So for people who want to come in here and be holier than thou about saying that their record was blemish free and they never exposed the Australian public to any risk, well, the facts don't actually back that up.

In January 2018 it was reported that two men escaped from Melbourne immigration transit accommodation detention facility in Broadmeadows, north of Melbourne, on New Year's Eve. In 2014, in the early period of the coalition government, when Mr Morrison was still the Minister for Immigration and Border Protection, it was reported that 'an underworld figure capable of extreme violence was on the run after escaping from the Victorian detention centre he was being held in as he awaited deportation from the country. The Minister for Immigration and Border Protection, Scott Morrison, confirmed the breakout.' He confirmed that two adult male detainees absconded from the Maribyrnong detention centre earlier today with outside assistance. So let's not pretend that the detention regime that was overseen by Dutton, Mr Morrison, Senator Cash, all of the coalition, was some perfect system that never exposed Australians to risk. Those are just three examples where we saw escapes—in some cases, we saw mass escapes—from immigration detention under the LNP. I think we should all recognise the kind of wild claims that have being made over the last few weeks by the coalition as base politics, because we know the thing they are best at is playing politics, dividing the Australian community, injecting fear into the Australian community rather than working constructively to keep the Australian community safe.

6:14 pm

Malcolm Roberts (Queensland, Pauline Hanson's One Nation Party) Share this | Link to this | Hansard source

Minister, constituents lack confidence in Labor when it comes to security, especially after the last few weeks. So I'm wondering whether or not you will be supporting my amendment to do a simple review of the legislation, especially the amendments. If not, what is the problem?

I remind the Senate that last week's highly significant Water Amendment (Restoring Our Rivers) Bill 2023 saw 31 amendments from the government to its own legislation in the House of Reps plus 20 amendments in the Senate. There was a total of 51 government amendments to its own bill, and those from the crossbenches and the Liberals brought them to 69. Minister Burke has been falsely creating the dishonest label 'closing loopholes' to hide the Hunter mining and energy union's complicity in aiding some labour hire firms in Australia's largest-ever wage theft worth billions of dollars. We're told that the Greens oppose the Nature Repair Market Bill 2023. They said so themselves just last week. Yet the Greens now support it because Labor has apparently agreed to allow the Greens to move amendments to the EPBC Act. The Greens support Labor's disastrous Nature Repair Bill apparently in return for Labor's support for disastrous Greens amendments to an existing law not before the Senate.

Andrew McLachlan (SA, Deputy-President) Share this | Link to this | Hansard source

Senator McKim, a point of order?

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

It's a point of order on relevance, Chair. The bill that Senator Roberts is referring to is actually not the bill that is currently before the Senate.

Andrew McLachlan (SA, Deputy-President) Share this | Link to this | Hansard source

We do allow some latitude, although I do take the point. I think Senator Roberts is trying to underpin his arguments for a review. Senator Roberts, please keep it to the point.

Malcolm Roberts (Queensland, Pauline Hanson's One Nation Party) Share this | Link to this | Hansard source

I'm pleased you could see that, Chair. That's exactly what I was doing. The government has a very shoddy reputation and is lacking credibility for its legislation that's been rushed and bullied and bulldozed into this place from the start of its term. So, Minister, I ask whether or not you'll be supporting our amendment for a simple review of the legislation.

6:16 pm

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

Thanks Senator Roberts. No, we won't be supporting the amendment putting forward a review. As I made it clear earlier in this debate, we are modelling this regime on the existing high-risk terrorist offenders regime. So we have some confidence in its ability to work, given it's been based on a regime that already exists. In addition—I don't know if you were here, Senator Roberts, when I mentioned this before—one of the amendments that we've tabled, clause 395.49, requires the Minister for Immigration, Citizenship and Multicultural Affairs to deliver an annual report about the operation of this regime. That is intended to give a level of transparency going forward to how this regime is operating, and we think it is an adequate measure to ensure that there is transparency in the system.

6:17 pm

Malcolm Roberts (Queensland, Pauline Hanson's One Nation Party) Share this | Link to this | Hansard source

I acknowledge that the legislation will have a ministerial report, but we are suggesting an independent review, not a government report.

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

Thanks, Senator Roberts. I can't really elaborate on my previous answer.

Andrew McLachlan (SA, Deputy-President) Share this | Link to this | Hansard source

Senator Cash. We have three minutes.

Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

Absolutely. Let's just be clear that, despite the rhetoric coming out again from the minister's mouth, we have never disputed that the government needed to comply with the order of the High Court. That is a fact. We have never disputed that. Of course, you did. The issue we have is in relation to the other 147 detainees who have now been released. The government has refused to answer whether or not that involved 147 separate decisions and whether or not each of those cases involved the careful application of principles laid down by the court over 74 paragraphs. They have refused to tell us whether or not the assessments involved the facts, the history of the matter and the prospects of removal in light of the principles articulated by the seven justices of the court. One can only assume, therefore, that in the majority of cases this did not happen. We know that. Why do we know that? Because you did not have the principles articulated by the seven justices of the High Court when you released the vast majority of the detainees. The Albanese government did not have the court's reasons. So what we would like to see you do, as I've said, in relation to each of the 147 hardcore criminals—rapists, pedophiles, murderers and a contract killer—that you have released into the community, is provide the Australian people with a complete analysis of the assessment that was undertaken. I won't hold my breath.

Andrew McLachlan (SA, Deputy-President) Share this | Link to this | Hansard source

In accordance with the order agreed to earlier today, the time for consideration of the Migration Amendment (Bridging Visa Conditions and Other Measures) Bill 2023 has expired. I will first put the question before the chair and then put the questions on the remaining stages of the bill. The question before the chair is that government amendments (1) to (5) on sheet SY101 moved by Senator Watt be agreed to.

6:26 pm

Andrew McLachlan (SA, Deputy-President) Share this | Link to this | Hansard source

I will now deal with the amendments circulated by Senator David Pocock. As these amendments were circulated after 4.20 pm, they can only be considered by leave. Is the senator seeking leave to move them?

David Pocock (ACT, Independent) Share this | Link to this | Hansard source

I am. I seek leave to move amendments (1) to (3) on sheet 2262 revised, amendments (1) to (3) on sheet 2263 revised and (1) to (3) on sheet 2321 together.

Leave granted.

I move my amendments:

SHEET 2262 REVISED

(1) Clause 3, page 2 (after line 11), at the end of the clause, add:

Note: The provisions of the Migration Regulations 1994 amended or inserted by this Act, and any other provisions of those regulations, may be amended or repealed by regulations made under the Migration Act 1958 (see subsection 13(5) of the Legislation Act 2003).

(2) Schedule 1, page 8 (after line 21), at the end of the Schedule, add:

8A Sunset of amendments

The amendments of the Migration Act 1958 made by:

(a) this Schedule, other than the amendments of the Migration Act 1958made by this Schedule to insert section 76AA; and

(b) Schedule 1 to the Migration Amendment (Bridging Visa Conditions) Act 2023;

cease to be in force at the start of the day after the end of the period of 6 months beginning on the day this Act receives the Royal Assent.

(3) Schedule 1, page 8 (after line 21), at the end of the Bill, add:

Schedule 1A — Sunset of amendments

Part 1 — Amendment of the Migration Regulations 1994

Migration Regulations 1994

1 At the end of Part 126 of Schedule 13

Add:

12602 Sunset of amendments

The amendments of these Regulations made by Part 1 of Schedule 2 to the Migration Amendment (Bridging Visa Conditions) Act 2023 cease to be in force at the start of the day after the end of the period of 6 months beginning on the day the Migration Amendment (Bridging Visa Conditions and Other Measures) Act 2023 receives the Royal Assent.

Part 2 — Other provisions

2 Affirmative resolution

(1) This item applies to regulations made under the Migration Act 1958 that:

(a) are made on or after the commencement of this Schedule; and

(b) have the effect of amending or repealing, or otherwise altering the effect or operation of, the amendments of the Migration Regulations 1994 made by this Schedule.

(2) The regulations do not come into effect until they have been approved by a resolution of each House of the Parliament.

_____

SHEET 2263 REVISED

(1) Clause 3, page 2 (after line 11), at the end of the clause, add:

(2) Schedule 1, page 8 (after line 21), at the end of the Schedule, add:

8A Sunset of amendments

The amendments of the Migration Act 1958 made by:

(a) this Schedule, other than the amendments of the Migration Act 1958 made by this Schedule to insert section 76AA; and

(b) Schedule 1 to the Migration Amendment (Bridging Visa Conditions) Act 2023;

cease to be in force at the start of the day after the end of the period of 12 months beginning on the day this Act receives the Royal Assent.

(3) Schedule 1, page 8 (after line 21), at the end of the bill, add:

Schedule 1A — Sunset of amendments

Part 1 — Amendment of the Migration Regulations 1994

Migration Regulations 1994

1 At the end of Part 126 of Schedule 13

Add:

12602 Sunset of amendments

The amendments of these Regulations made by Part 1 of Schedule 2 to the Migration Amendment (Bridging Visa Conditions) Act 2023 cease to be in force at the start of the day after the end of the period of 12 months beginning on the day the Migration Amendment (Bridging Visa Conditions and Other Measures) Act 2023 receives the Royal Assent.

Part 2 — Other provisions

2 Affirmative resolution

(1) This item applies to regulations made under the Migration Act 1958 that:

(a) are made on or after the commencement of this Schedule; and

(b) have the effect of amending or repealing, or otherwise altering the effect or operation of, the amendments of the Migration Regulations 1994 made by this Schedule.

(2) The regulations do not come into effect until they have been approved by a resolution of each House of the Parliament.

_____

SHEET 2321

(1) Clause 3, page 2 (after line 11), at the end of the clause, add:

(2) Schedule 1, page 8 (after line 21), at the end of the Schedule, add:

8A Sunset of amendments

The amendments of the Migration Act 1958 made by:

(a) this Schedule; and

(b) Schedule 2; and

cease to be in force at the start of the day after the end of the period of 12 months beginning on the day this Act receives the Royal Assent.

(3) Schedule 1, page 8 (after line 21), at the end of the bill, add:

Schedule 1A — Sunset of amendments

Part 1 — Amendment of the Migration Regulations 1994

Migration Regulations 1994

1 At the end of Part 126 of Schedule 13

Add:

12602 Sunset of amendments

The amendments of these Regulations made by Part 1 of Schedule 2 to the Migration Amendment (Bridging Visa Conditions) Act 2023 cease to be in force at the start of the day after the end of the period of 12 months beginning on the day the Migration Amendment (Bridging Visa Conditions and Other Measures) Act 2023 receives the Royal Assent.

Part 2 — Other provisions

2 Affirmative resolution

(1) This item applies to regulations made under the Migration Act 1958 that:

(a) are made on or after the commencement of this Schedule; and

(b) have the effect of amending or repealing, or otherwise altering the effect or operation of, the amendments of the Migration Regulations 1994 made by this Schedule.

(2) The regulations do not come into effect until they have been approved by a resolution of each House of the Parliament.

Andrew McLachlan (SA, Deputy-President) Share this | Link to this | Hansard source

The question before the chair is that the amendments on sheets 2262 revised, 2263 revised and 2321 be agreed to.

6:32 pm

Andrew McLachlan (SA, Deputy-President) Share this | Link to this | Hansard source

I will now deal with the amendment circulated by Pauline Hanson's One Nation. The question before the chair is that the amendment on sheet 2255 be agreed to.

Pauline Hanson's One Nation's circulated amendment—

(1) Page 2 (after line 11), after clause 3, insert:

4 Review of operation of amendments

(1) The Minister must cause an independent review to be conducted of the operation of the amendments made by:

(a) this Act; and

(b) the Migration Amendment (Bridging Visa Conditions) Act 2023 .

(2) Without limiting the matters that may be considered when conducting the review, the review must:

(a) consider whether the operation of the amendments referred to in subsection (1) is appropriate and effective; and

(b) identify any unintended consequences of the amendments referred to in subsection (1); and

(d) consider whether any further amendments are necessary to:

(i) improve the operation of the amendments referred to in subsection (1); or

(ii) rectify any unintended consequences identified under paragraph (b).

(3) The persons who conduct the review must give the Minister a written report of the review within 6 months of the commencement of this Act.

(4) The Minister must cause a copy of the report of the review to be tabled in each House of the Parliament within 5 sitting days of that House after the Minister receives the report.

6:34 pm

Andrew McLachlan (SA, Deputy-President) Share this | Link to this | Hansard source

I will now deal with the amendments circulated by the opposition. The question is that the amendments on sheet 2279 be agreed to.

Opposition's circulated amendments—

(1) Schedule 1, item 4, page 7 (after line 28), after section 76F, insert:

76G Statement about grant of visas to certain non-citizens released from immigration detention

Minister must prepare statement

(1) The Minister must prepare a statement about the grant of any of the following visas to a non-citizen:

(a) a Subclass 070 (Bridging (Removal Pending)) visa granted in the circumstances described in paragraphs 76A(1)(b), (c) and (d);

(b) a Subclass 070 (Bridging (Removal Pending)) visa taken to have been granted under paragraph 76A(3)(a);

(d) if the non-citizen is released from immigration detention because, at the time of the release, there is no real prospect of the removal of the non-citizen from Australia becoming practicable in the reasonably foreseeable future—a visa (other than a visa covered by any of the above paragraphs) granted to the non-citizen at any time after the release.

Information included in the statement

(2) The statement about the grant of a visa to a non-citizen must, subject to subsection (3), include the following:

(a) details of the visa to which the statement relates, including the conditions (if any) imposed on the visa;

(b) details of the non-citizen's immigration history, including details of any visas previously held by the non-citizen;

(d) if the non-citizen has been convicted, in Australia, of an offence—details of the offence;

(e) if the non-citizen has been convicted, in a foreign country, of an offence—details of the offence (to the extent that the details are held by the Minister or the Department);

(f) the basis on which there was no real prospect of the removal of the non-citizen from Australia becoming practicable in the reasonably foreseeable future, at the following time:

(i) for a visa covered by paragraph (1)(a) or (c)—at the time non-citizen was granted the visa;

(ii) for a visa covered by paragraph (1)(b)—at the time the non-citizen was granted a visa covered by paragraph (1)(a);

(iii) for a visa covered by paragraph (1)(d)—at the time the non-citizen was most recently released from immigration detention, as described in that paragraph, before the grant of the visa;

(g) details of any attempts to remove or deport the non-citizen from Australia.

(3) The statement about the grant of a visa to a non-citizen must not include:

(a) the non-citizen's name, date of birth or residential address; or

(b) information that would reveal the identity of the non-citizen; or

(c) information the disclosure of which would, or could reasonably be expected to, cause damage to the security, defence or international relations of the Commonwealth.

Preparation and tabling within 7 days

(4) The statement about the grant of a visa to a non-citizen must be prepared within the period (the relevant period) of 7 days starting:

(a) for a visa granted before this section commences—on the day this section commences; or

(b) otherwise—on the day the visa is granted.

(5) The Minister must, within the relevant period, cause a copy of the statement:

(a) to be tabled in each House of the Parliament; or

(b) if a House of the Parliament is not sitting after the statement is prepared and before the end of relevant period—to be presented or tabled at the earliest opportunity in accordance with the practices of that House.

Natural justice hearing rule

(6) The Minister is not required to observe any requirements of the natural justice hearing rule in exercising a power or performing a function under this section.

(2) Schedule 1, page 8 (after line 21), at the end of the Schedule, add:

8 Application of amendments — section 76G

Section 76G of the Migration Act 1958, as inserted by this Schedule, applies in relation to the following:

(a) a visa covered by paragraph 76G(1)(a), (b) or (c) granted, or taken to have been granted, to a non-citizen before, on or after the commencement of this item;

(b) a visa covered by paragraph 76G(1)(d) granted to a non-citizen on or after that commencement, whether the non-citizen was released from immigration detention before, on or after that commencement.

Senate debates

Tuesday, 5 December 2023

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Migration Amendment (Bridging Visa Conditions and Other Measures) Bill 2023; In Committee