Document ID: chunk:federal_register_of_legislation:C2023A00110:clause:2_5:p25
Version: federal_register_of_legislation:C2023A00110
Segment Type: clause
Provision Reference: sch 2 cl 5 (pt 25/38)
Character Range: 80906–83704

offender, from calling their own relevant expert as a witness in the review.

Affirming or revoking the order
 (6) The Court may affirm the order (including affirm the order with variations made under section 395.26) if, after having regard to the matters in section 395.11, the Court is satisfied that the Court:
 (a) for a community safety detention order—could have made the order under section 395.12; or
 (b) for a community safety supervision order—could have made the order under section 395.13, or could have made the order disregarding paragraph 395.13(1)(d).
Note: The rules of evidence and procedure for civil matters apply when the Court has regard to matters in accordance with section 395.11, as referred to in this subsection (see subsection 395.11(3) and section 395.27).
 (7) If the review is of a community safety detention order, and the Court does not affirm the order under subsection (6), the Court must:
 (a) consider making a community safety supervision order in relation to the offender under section 395.13; and
 (b) seek the following material from the Immigration Minister:
 (i) a copy of the proposed conditions that would be sought for a community safety supervision order;
 (ii) an explanation as to why each of the proposed conditions should be imposed on the offender;
 (iii) if the Immigration Minister is aware of any facts relating to why any of those conditions should not be imposed on the offender—a statement of those facts, except any facts that are likely to be protected by public interest immunity (whether the claim for public interest immunity is to be made by the Immigration Minister or any other person); and
 (c) if the Court does not make a community safety supervision order in relation to the offender—revoke the community safety detention order.
Note: If the Court makes a community safety supervision order in relation to the offender, the community safety detention order is revoked under subsection 395.13(7).
 (8) If the Court does not affirm a community safety supervision order under subsection (6), the Court must revoke the order.

Onus of satisfying Court
 (9) The Immigration Minister must ensure that reasonable inquiries are made to ascertain any facts known to any Commonwealth law enforcement officer that would reasonably be regarded as supporting a finding that the order should not be affirmed.
 (10) The Immigration Minister bears the onus of satisfying the Court of the matters referred to in section 395.12 or 395.13.
 (11) The Immigration Minister, or the legal representative of the Immigration Minister, must present to the Court:
 (a) a copy of any material in the possession of the Immigration Minister or legal representative; and
 (b) a statement of any facts that the Immigration Minister or legal representative is