Law Enforcement (Powers and Responsibilities) Act 2002 No 103
Current version for 23 March 2020 to date (accessed 6 June 2020 at 12:42)
Part 6B Division 3
Division 3 Appeals against long duration public safety orders
87V   Application of Division
This Division applies only to a public safety order that is (or is to be) in force for a period exceeding 72 hours (a long duration public safety order).
87W   Appeal to Supreme Court against long duration public safety orders
(1)  A person to whom a long duration public safety order applies may appeal to the Supreme Court against—
(a)  the decision to make the order, or
(b)  a decision to vary the order (unless the decision operates to reduce the duration of the order to 72 hours or less).
(2)  An appeal under this Division must be made before the long duration public safety order ceases to be in force.
(3)  The making of an appeal under this Division does not affect the operation of the long duration public safety order under appeal.
87X   Criminal intelligence reports or other criminal information
(1)  The Commissioner may make an application to the Supreme Court in an appeal under this Division for the Court not to disclose the existence or content of any criminal intelligence report or other criminal information used in connection with the making or variation of the long duration public safety order under appeal.
(2)  The Supreme Court may grant the application if the Court—
(a)  is satisfied that the information to which the application relates is a criminal intelligence report or other criminal information, and
(b)  considers that it is in the interests of justice to grant the application.
(3)  In determining whether it is in the interests of justice to grant the application, the Supreme Court is to take into account each of the following matters concerning the effect of disclosure of the criminal intelligence report or other criminal information to which the application relates—
(a)  whether disclosure will have a prejudicial effect on the prevention, investigation or prosecution of an offence,
(b)  whether disclosure will result in the existence or identity of a confidential source of information relevant for law enforcement purposes being revealed or made discoverable,
(c)  whether disclosure will result in confidential investigative methods or techniques used by police or security agencies being revealed or made discoverable,
(d)  whether disclosure will endanger a person’s life or physical safety.
(4)  If the Supreme Court grants the application, the Court—
(a)  is to ensure that the Court does not, in the reasons for its decision on the appeal or otherwise, disclose the existence or content of the criminal intelligence report or other criminal information to which the application relates, and
(b)  in order to prevent the disclosure of the criminal intelligence report or other criminal information, is to receive evidence and hear argument in the appeal in the absence of the public, the appellant, the appellant’s representative and any other party, unless the Commissioner approves otherwise.
Note.
 Section 87T(4) provides that a statement of the reasons of a senior police officer for making or varying a public safety order must not contain information that would result in the disclosure of a criminal intelligence report or other criminal information held in relation to a person.
(5)  If the Supreme Court refuses the application, the Commissioner is entitled to withdraw the tender of the information to which the application relates as evidence in the appeal.
(6)  Information that is withdrawn by the Commissioner must not be—
(a)  disclosed to any person, or
(b)  taken into consideration by the Supreme Court in determining an appeal under this Division.
87Y   Determination of appeal on the merits
(1)  On an appeal under this Division, the Supreme Court is to decide what the correct and preferable decision is having regard to the material then before it, including the following—
(a)  any relevant factual material,
(b)  any applicable written or unwritten law.
(2)  In determining the appeal, the Supreme Court may decide—
(a)  to affirm the decision under appeal, or
(b)  to vary the decision under appeal, or
(c)  to set aside the decision under appeal, or
(d)  to set aside the decision under appeal and make a decision in substitution for the decision that is set aside.
87Z   Rules of court
Rules of court may be made under the Civil Procedure Act 2005 and the Supreme Court Act 1970 for or with respect to the practice and procedure to be followed in respect of an appeal under this Division and any matters incidental to, or relating to, such practice and procedure.