The offender must pose an ‘unacceptable risk’
The proposed continuing detention order’s interaction with the control order scheme
Role of ‘relevant experts’
Human rights implications
Unlawful deprivation of liberty
Retrospective punishment for the same conduct?
Key provisions
Schedule 1
Schedule 2

Concluding comments. 20

Date introduced: 15 September 2016
House: Senate
Portfolio: Attorney-General
Commencement: Schedule 1 will commence on a day fixed by Proclamation, or six months following Royal Assent, whichever is the sooner. Schedule 2 will generally commence at the same time as the provisions in Schedule 1, contingent on the commencement of Schedule 9 of the Counter-Terrorism Legislation Amendment Act (No. 1) 2016. The reader is advised to refer to specific detail in the Commencement information at Section 2 of the Bill. The Digest discusses the contingent amendments under key provisions.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at November 2016.

Purpose of the Bill

The purpose of the Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016 (the Bill) is to amend the Criminal Code Act 1995 to establish a scheme for the continuing detention of terrorist offenders[1] who are considered to pose an unacceptable risk of committing certain serious terrorism offences if released into the community at the end of their custodial sentence. The scheme will establish a Continuing Detention Order, made by application to the Supreme Court of a state or territory.

Structure of the Bill

The Bill contains two Schedules.

Schedule 1 will make amendments to the Criminal Code Act 1995 (Cth) (Criminal Code) to establish the continuing detention order scheme.

Schedule 2 will amend the Surveillance Devices Act 2004 (Cth) and the Telecommunications (Interception and Access) Act 1979 to facilitate the admission of evidence in proceedings relating to applications for continuing detention orders made under the proposed new Division 105A of the Criminal Code.

Part 2 of Schedule 2 inserts some contingent amendments, relating to the passage of the Counter-Terrorism Legislation Amendment Bill (No. 1) 2016.

Background

This Bill is the one of a number of Government national security related Bills before the Parliament in late 2016. The Government has introduced and the Parliament has passed a number of significant national security and counter-terrorism related reforms since mid-2014 in response to the changing nature of security threats including terrorism and the need to enhance operational and investigative capability.[2]

The earliest announcement of a post-sentence preventative detention scheme in Australia was on
10 December 2015, when the Council of Australian Governments (COAG) agreed, under the agenda item of Countering Violent Extremism, to task the Australia-New Zealand Counter-Terrorism Committee (ANZCTC) to develop a nationally consistent post-sentence preventative detention scheme to enable a continuing period of imprisonment for high risk terrorist offenders.[3]

On 1 April 2016, COAG announced that it reached an agreement to establish a scheme that would allow the continued detention of convicted terrorists past their sentence end date in certain circumstances. At that meeting:

First Ministers supported the development of a nationally consistent post sentence preventative detention scheme, with appropriate protections, that covers high risk terrorist offenders. They agreed that the Commonwealth would draft legislation, to be introduced as soon as practicable, following consultation with states.

COAG agreed, in-principle, to the NSW model as the basis for a strengthened nationally consistent pre-charge detention scheme for terrorism suspects, with the ACT reserving its position. NSW will introduce the legislation and consult with other jurisdictions.[4]

Following the re-election of the Coalition Government, the Prime Minister and the Attorney-General announced on 25 July 2016 the Government’s intention to introduce post-sentence detention legislation in the new Parliament as soon as practicable.[5] On 5 August 2016, the Attorney-General announced that all Australian Attorneys-General had met and reached an in-principle agreement to the proposed scheme.[6] Further detail on the scheme was provided in the meeting communique from this date, outlining that the Commonwealth, state and territory Attorneys-General:

a) Agreed in principle, subject to consideration by their respective Cabinets, with the Commonwealth’s proposed legislation to amend Part 5.3 of the Criminal Code Act 1995 (Cth).

b) Noted that the Commonwealth will seek formal approval for the proposed amendments from State and Territory Premiers and Chief Ministers in accordance with the Intergovernmental Agreement on Counter-Terrorism Laws.[7]

c) Noted that the legislation, after introduction by the Commonwealth Attorney-General, will be subject to further review and report by the Commonwealth Parliamentary Joint Committee on Intelligence and Security.

d) Subject to the foregoing, agreed to work together to ensure the successful implementation of the proposed scheme within their jurisdictions. Matters to be discussed will include resourcing, operational matters and appropriate oversight.[8]

In the second reading speech at the time of the Bill’s introduction, the Attorney-General stated that ‘jurisdictions have now agreed to the provisions of the Bill’.[9]

A continuing detention order can be explained as one which, when put in place by the Court, will commit an offender to incarceration for a specified time period. The continuing detention order may apply to any person convicted of specified terrorism and terrorism-related offences, including foreign incursions and recruitment. The person needs to be serving a prison sentence or already subject to a continuing detention order or an interim detention order. As part of its consideration, the Court may appoint one or more relevant experts to conduct an assessment and provide a report on the risk of the offender committing a serious Part 5.3 (terrorism) offence if released into the community.

Constitutional issues

Chapter III validity

The Bill presents some potential incompatibility with requirements prescribed in Chapter III of the Constitution. This Bills Digest is unable to conclude whether or not the Bill is constitutionally valid, however the following issues are flagged as issues for consideration:

whether preventative detention is a non-judicial function that cannot be vested in a Chapter III court[10]
whether a person can be validly detained for the risk of future criminal acts, rather than as a punishment for previous criminal acts — this point of debate is valid for both the scheme proposed in the Bill as well as the existing Preventative Detention Order regime, which has also not yet been considered by the High Court[11]
whether the proposed scheme is valid in so far as it results in the incarceration of people following the issue of an order that may be considered to lack fair process, particularly because the person who is the subject of the continuing detention order is not able to respond to all evidence that a court might consider
apparent limitations on the ability of the court to consider alternatives to continuing detention.[12]

At the time the details of the proposal were announced, in July 2016, the Attorney-General stated that he was ‘reasonably confident’ that the proposed legislation would ‘survive a High Court challenge.’[13] The Attorney‑General also stated that ‘the analogous legislation dealing with sex offenders was the subject of a High Court challenge in a case called Fardon’s case and its validity was upheld.’[14] However, in legal terms, the case is not clear authority for a Commonwealth continuing detention order regime as that case was about the validity of a State Act to prescribe continuing detention orders for sex offenders. The circumstances are different with regards to a Commonwealth law, and Justices Callinan and Heydon touched on this in the aforementioned case of Fardon:

Federal judicial power is not identical with State judicial power. Although the test, whether, if the State enactment were a federal enactment, it would infringe Ch III of the Constitution, is a useful one, it is not the exclusive test of validity. It is possible that a State legislative conferral of power which, if it were federal legislation, would infringe Ch III of the Constitution, may nonetheless be valid. Not everything by way of decision-making denied to a federal judge is denied to a judge of a State. So long as the State court, in applying legislation, is not called upon to act and decide, effectively as the alter ego of the legislature or the executive, so long as it is to undertake a genuine adjudicative process and so long as its integrity and independence as a court are not compromised, then the legislation in question will not infringe Ch III of the Constitution.[15]

Professor Andrew Lynch offered the following comment in 2008:

Fardon gave no clear answer to the broader question of whether the ability to detain on the basis of what a person might do rather than what they have done is judicial in nature... Gummow and Kirby JJ (the latter in dissent) suggested that had the Act been passed by the Commonwealth it would have offended Chapter III. While accepting the existence of exceptional cases, Gummow J insisted that Chapter III ensured that ‘the involuntary detention of a citizen in custody by the state is permissible only as a consequential step in the adjudication of criminal guilt of that citizen for past acts.[16]

The question for resolution in Fardon was whether the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) was incompatible with Chapter III of the Constitution insofar as the Supreme Court of Queensland holds federal jurisdiction. Explicitly, the High Court was asked to consider the ‘Kable’ principle regarding the conferral of federal jurisdiction on State courts.[17] To use the Fardon case as a precedent that the proposed Bill will be constitutionally sound is flawed for a number of issues flagged above. However, in a broad sense:

... together, the cases of Kable and Fardon indicate that the constitutional validity of a preventive detention scheme involving courts hinges not only on whether a key aspect of decisional independence has been usurped (through ad hominem legislation[18]), but also on the compliance of the scheme with basic aspects of fair and ordinary judicial process.[19]

Further, in a joint submission to the Parliamentary Joint Committee on Intelligence and Security’s (PJCIS) inquiry into the Bill, Drs Ananian-Welsh, McGarrity, Tulich and Professor Williams noted that the Fardon case demonstrates that ‘the constitutional validity of a post-sentence detention scheme turns on its adherence to certain aspects of procedural fairness’.[20]

The proposed Bill is not definitively constitutionally sound and the PJCIS noted concerns about a federal
post-sentence detention scheme, recommending that the Government obtain legal advice from the
Solicitor-General, or equivalent, on the final form of the Bill (recommendation 1).[21] The other issues for consideration flagged above relating to the broader issues of fair and ordinary judicial process are discussed further in this Bill Digest under human rights implications.

State and Territory Referral of Power

For an explanation of the state referral of power relating to terrorism and terrorist organisations, see the Bills Digest [22] on the Criminal Code Amendment (Terrorism) Bill 2002. In the second reading speech on the Bill, the Attorney-General Senator George Brandis stated:

... the Commonwealth considers that the new framework has a sound constitutional foundation. Out of an abundance of caution, however, I have asked my State counter-parts to enact amendments to existing referrals of power relating to Part 5.3 of the Criminal Code to make explicit that State support extends to the post-sentence preventative detention regime.[23]

Following the introduction of the Bill on 15 September 2016, state and territory Attorneys-General agreed at the Law, Crime and Community Safety Council meeting on 21 October 2016 that states and territories should:

(a) amend their referral legislation to make it clear that the referrals extend to the proposed post-sentence preventative detention regime; and

(b) enact these amendments as a matter of urgency.[24]

However, there may be some complexities in amending the referral legislation, with some definitional issues around the power to legislate with respect to ‘the matter of terrorist acts’ and ‘actions relating to terrorist acts’. The offences in proposed paragraph 105A.3(1)(a) extend beyond those in Part 5.3 of the Criminal Code to which the existing referral relates. The Government has not provided further detail about the status of any negotiations with the states about the required amendments to their referral legislation.

Policy background

The main catalyst for this Bill is to take action to ensure community safety taking into account the changing nature of terrorism.[25] The incarceration of terrorism offenders from more than ten years ago is due to end from 2019 onwards and there may be evidence presented to a court that demonstrates that there are continued and varied risks that a terrorist offender poses once he is released back into the community.[26] Note, though, that the Government has made it clear that this Bill is not being introduced because any particular offender or group of offenders is soon to be released.[27] Secondly, Prime Minister Malcolm Turnbull is advocating for changes and greater diligence in the wake of atrocities overseas in Orlando, United States and Nice, France.[28] In this regard, there is arguably a culture of fear in Australia’s response to terrorism, with a tendency towards a legislative response in an attempt to constrain and deter terrorist activity.[29] Anti-terrorism and related national security legislation has often been enacted with a lesser evidence-base than might ordinarily be preferred.[30] The need for continued detention for terrorist offenders is not yet explicitly established and may be based on a fear of the possibility that the person will reoffend in a similar manner. However, it has also been acknowledged in academic circles that the ‘consequences of releasing a terrorist offender who remains radicalised (defined as a commitment to an extremist, political or religious ideology) is a real threat to counter-terrorism efforts.’[31] Further, an Australian example of a former convict returning to terrorism is Khaled Sharrouf, who was imprisoned following a failed terrorist plot in 2005. In 2013, he used his brother’s passport to leave Australia and has resurfaced in Iraq and Syria, fighting with the terrorist group, Islamic State. Two of the offenders who were plotting with Sharrouf, Ezzit Raad and Amer Haddara, have also travelled to fight in Syria and Lebanon, where they are reported to be trying to recruit Australian fighters.[32]

Additionally, the Australian Government has been working with state and territory governments to prevent violent extremism and discourage radicalisation. An important part of countering violent extremism is to:

... work with state and territory governments to develop and implement programmes to rehabilitate people imprisoned for terrorism related offences, as well as prevent the radicalisation of other prisoners.[33]

The Bill contains some provisions that may assist to prevent the radicalisation of other prisoners, for example by requiring that the offender who is subject to a continuing detention order must not be accommodated or detained in the same area or unit of the prison as other prisoners unless it is reasonably necessary for prescribed purposes; proposed subsection 105A.4(2) refers.

In his second reading speech the Attorney-General stated that a majority of states and territories, as well as international counterparts including the United Kingdom and New Zealand have enacted post-sentence preventative detention regimes dealing with high risk sex and/or violent offenders.[34] The policy to establish some sort of post-sentence detention regime for terrorist offenders has evolved from the focus on prison rehabilitation and post-sentence monitoring:

With the passage of time and the release or pending release of convicted or suspected terrorists, the urgency began to shift somewhat from instant security to what happens after release. Signs that some former Guantanamo Bay prisoners had returned to terrorist activity triggered concerns about recidivism and the role of terrorism detention policies in post release violent extremism.

In response, policy makers and scholars embarked on a quest for “good practices” in rehabilitation and reintegration ... In 2012, the Global Counter Terrorism Forum (GCTF), a multilateral cooperation between twenty-nine UN countries and the EU, formally adopted the “Rome Memorandum on Good Practices for Rehabilitation and Reintegration of Violent Extremist Offenders” (henceforth Rome Memorandum), which identifies a series of guiding principles that can potentially serve as the foundation for states’ policies.[35]

The Australian Government has taken the view that the existing monitoring mechanisms of control orders and preventive detention orders may be insufficient because ‘... there may be some circumstances where, even with controls placed upon them, the risk an offender presents to the community is simply too great for them to be released from prison.’[36] The continuing detention order for terrorism offences is unprecedented and raises constitutional issues that require further consideration. The Bill also raises specific concerns that a number of stakeholders have addressed through submissions to the Parliamentary Joint Committee on Intelligence and Security’s inquiry into the Bill. These are discussed under Key Issues and Provisions below.

Committee consideration

Parliamentary Joint Committee on Intelligence and Security

The Bill was referred to the Parliamentary Joint Committee on Intelligence and Security (PJCIS) for inquiry and the Committee reported on 4 November 2016. Details of the inquiry and the report are at the inquiry homepage.[37]

The PJCIS recognised that the provisions of the Bill are ‘extraordinary’.[38] However, the Committee accepted that ‘a scheme for the post-sentence detention of terrorist offenders who continue to pose an unacceptable risk to the community will be an important part of Australia’s multifaceted response to the terrorist threat.’[39] The Committee therefore focused its attention on the laws being appropriately targeted and having adequate safeguards to ensure their proportionality.[40] In making 24 recommendations, the Committee recommended that following the implementation of the recommendations made in its report, the Bill be passed.[41]

Key recommendations include:

that the Government obtains legal advice from the Solicitor-General, or equivalent, on the final form of the Bill (recommendation 1)
amending proposed section 105A.3 to remove from the scope of offences covered by the Bill, the offences in Subdivision B of Division 80 of the Criminal Code, which refers to treason (recommendation 2)
amending the Explanatory Memorandum to provide greater clarity to the definition of ‘relevant expert’ which should include examples of persons who may potentially fall within the category ‘any other expert’ at item (d) of the definition (recommendation 7)
for the avoidance of doubt, the Government should amend Division 104 of the Criminal Code to make explicit that a control order can be applied for and obtained while an individual is in prison, but that the controls imposed by that order would not apply until the person is released (recommendation 16[42]) and
inserting a clause into the Bill for the continuing detention order scheme to sunset after ten years (recommendation 18)
amending the Intelligence Services Act 2001 to require the PJCIS to complete a review of the continuing detention order regime at Division 105A of the Criminal Code six years after passage of the Bill (recommendation 19)
amending the Bill to require the Independent National Security Legislation Monitor to complete a review of the continuing detention regime at Division 105A of the Criminal Code five years after passage of the Bill (recommendation 20).[43]

A notable recommendation for the purposes of parliamentary debate is recommendation 22, which recommends that the Attorney-General provide the Committee with a clear development and implementation plan that includes timeframes to assist detailed consideration of the Bill and that this plan should be provided prior to the second reading debate in the Senate.[44] The Bill has been scheduled for debate in the final sitting week for 2016. At the time of the publication of this Digest, the Government has not provided a response to the PJCIS report or provided an implementation plan.

Senate Standing Committee for the Scrutiny of Bills

In its report, the Senate Standing Committee for the Scrutiny of Bills notes that the Explanatory Memorandum argues that the ‘inversion of fundamental principles proposed by this Bill is justified on the basis that the rationale for detention is non-punitive. Rather, it is suggested, the Bill has a protective purpose.’[45] The Committee concluded that ‘where the trigger for the assessment of whether or not a person poses an unacceptable risk to the community is prior conviction for an offence, the protective purposes cannot be clearly separated from the functioning of the criminal justice system.’[46] The Committee sought further justification from the Attorney-General of a number of issues.[47] In its Report of 9 November 2016, the Committee reported that it had not received a response from the Attorney-General by the 27 October 2016 deadline.[48]

Policy position of non-government parties/independents

Shadow Attorney-General, Mark Dreyfus, reportedly said in July 2016, prior to the legislation’s introduction:

... the legislation would need strict checks and balances before the Opposition would consider supporting the legislation. "I'm encouraged by the approach taken by the Government so far on proposed national post-sentence detention legislation," Mr Dreyfus said. "It's likely to be a controversial measure in many quarters and a careful approach is necessary, in particular I note the Government's insistence that post-sentence detention orders would be made the subject of court review and of course also subject to periodic review as the Prime Minister made clear ..."[49]

On 30 October 2016, it was reported that Labor had confirmed that it will support the laws with agreed amendments to ensure there is no delay.[50]

Other Parliamentarians have not yet confirmed their position publicly on this Bill.

Position of major interest groups

The Law Council of Australia (LCA) made a submission and gave evidence to the PJCIS Inquiry into the Bill, broadly recommending ‘that the Bill be amended to improve consistency with rule of law principles and the integrity of the judicial process’.[51] The LCA made some specific recommendations including:

that a maximum prescribed term of ongoing detention should be set out in the Bill; alternatively there should be a limit on the number of successive orders that can be made[52]

...

that the Committee should inquire into the proposed risk assessment methodology to be employed and be satisfied that it has been sufficiently validated in the case of terrorist offenders[53] and
that the Bill should be amended to include provisions allowing the Court to order funding for the respondent’s reasonable legal expenses, should the respondent not be in a position to self-fund.[54]

The Law Council argued that post-sentence preventive detention also sits outside the normal criminal justice framework:

‘It confronts, if not contravenes, a range of common law principles and human rights protections by virtue of:

the application of the rules of evidence and procedure for civil matters to detention, without ordinary means of testing contested evidence;
detention being based on preventing expected future behaviour, rather than as a punishment for past offending proven in a Court;
ongoing detention contrary to the principle of finality
the reality that detainees will serve their continued detention in high risk security conditions
the reality of what can be seen as double punishment for the same conduct; and
retrospectivity of criminal laws applicable to offenders sentenced before the regime proposed by the Bill was in place ...[55]

The Australian Human Rights Commission (AHRC) provided a lengthy submission to the PJCIS Inquiry into the Bill which focused on whether there is a sufficient evidence base for the proposed scheme, as well as making recommendations to improve the operation of the scheme to ‘achieve better human rights outcomes if the Committee decides that the Bill should be passed’.[56] The AHRC acknowledges that there are elements in the Bill which attempt to create a scheme ‘that is not arbitrary and that is reasonable and proportionate to the purpose of ensuring community safety’.[57] Thirteen detailed recommendations follow and of particular interest not flagged elsewhere in this Digest are:

Recommendation 2
The Commission recommends that the offence in section 119.2 of the Criminal Code (Entering, or remaining in, declared areas) be excluded from the scope of the definition of a ‘terrorist offender’ in proposed section 105A.3(1)(a).

The Commission seeks further justification of its inclusion given that these offences do not ‘give rise to an inference that a person poses a risk to community safety’:[58]

Recommendation 3
The Commission recommends that further consideration be given to whether the offences in paragraphs 119.7(2) and (3) of the Criminal Code (Publishing recruitment advertisements) should be included within the scope of the definition of a ‘terrorist offender’ in proposed s 105A.3(1)(a). If these offences are to be so included, their inclusion should be appropriately justified in the Explanatory Memorandum accompanying the Bill.[59]

...

Recommendation 10
The Commission recommends that the Committee seek advice from the Attorney-General’s Department about whether legal aid will be available for offenders against whom application for continuing detention orders are made.[60]

The Commission considers that, given an application for a continuing detention order has the potential to result in a further period of detention, it is appropriate that most, if not all, of the due process protections in Article 14(3) of the International Covenant on Civil and Political Rights apply, in particular legal representation:[61]

Recommendation 12
The Commission recommends that the Bill include a provision requiring a court sentencing a person in relation to an offence to which the Bill applies to warn the person about the operation of the continuing detention order regime.

Recommendation 13
The Commission recommends that the Bill include provision for a statutory review of its provisions after three years.[62]

Other key stakeholder submissions that were made publicly available by the Committee included Civil Liberties Australia, which does not support the Bill, saying:

To imprison a person who has committed no crime on the basis solely of opinion on possible future behaviour constitutes arbitrary imprisonment. Such measures therefore contravene universally accepted (including by Australia) standards of human rights as set out in the International Covenant on Civil and Political Rights.

More to the point, such treatment should be anathema to our system of justice and our long-standing traditions of the rule of law. We are staggered that the Explanatory Memorandum accompanying the Bill lightly dismisses these fundamental issues through appeals to “public safety”. It is the hallmark of tyrannical regimes to cite “public safety” in order to lock people away who have committed no crimes.[63]

Another noteworthy submission from legal academics also did not support the Bill in its present form, saying that post-sentence detention can only ever be justified if:

a mechanism exists to accurately assess the level of risk that a convicted terrorist poses upon his or her release and
effective rehabilitation programs are available for convicted terrorists in gaol.[64]

The Committee’s report did acknowledge and address the concerns of the submitters and noted in its concluding comments:

Unlike previous threats to national security, our community is threatened not by enemy combatants from a foreign military power, but by a small number of persons within our community who, with ideological zeal, seek to undertake terrorist activities and do harm not only to Australian security and defence authorities, but to innocent civilians going about their lives. There have been examples both in Australia and overseas of persons under the influence of terrorist organisations who are willing to go to any lengths, and use any means, to commit acts of extreme violence against their own community ... The Committee therefore accepts that there is a need, subject to strict safeguards, for courts to have extraordinary powers to minimise the risk of such persons carrying out their aims ... In examining the Bill and the evidence provided by participants in the inquiry, the Committee has recommended a number of amendments to both enhance the regime’s integrity and safeguards, and to improve its effectiveness.[65]

Financial implications

The Explanatory Memorandum states that the amendments in the Bill have little or no financial impact on Government expenditure or revenue.[66]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.[67]

Parliamentary Joint Committee on Human Rights

On 11 October 2016 and 9 November 2016, the Parliamentary Committee on Humans Rights (PJCHR) provided its reports which included scrutiny of this Bill.[68] In particular, the PJCHR noted that the proposal to detain an individual on the basis of future risk of offending is a serious measure for a state to take.[69] The PJCHR focused its comments on the compatibility of the Bill with the right to be free from arbitrary detention, as prescribed under Article 9 of the International Covenant on Civil and Political Rights (ICCPR). However, acknowledging the need to have compelling reasons arising from the gravity of the crimes committed and the likelihood of the detainee’s committing similar crimes in the future, the Committee questions whether the proposed scheme is necessary and proportionate, and not arbitrary within the meaning of Article 9.[70]

The PJCHR went into detail about existing preventative detention regimes in Queensland and NSW, which were found by the United Nations Human Rights Committee (UNHRC) to be incompatible with the right to be free from arbitrary detention. In particular, the PJCHR questions the adequacy of the safeguards proposed in the Bill, seeking further advice from the Attorney-General on the following questions:

what types of less restrictive measures may be considered by the court
what options might be available to the court to assess or make orders in relation to the provision of less restrictive alternatives and
whether the Attorney-General will consider whether there are less restrictive alternatives in deciding whether to make an application for a continuing detention order.[71]

Other matters raised by the PJCHR to which further consideration by the Attorney-General was sought include:

amending the Bill to provide for a criminal standard of proof (as currently is the case under the Dangerous Sexual Offenders Act 2006 (WA), section 40)
establish a Risk Management Monitor to assist in addressing concerns regarding assessments of future 'unacceptable risk'
that the Bill be amended to only apply to new offenders, to assist in addressing concerns regarding the application of retrospective criminal laws (article 15 of the ICCPR) and
that the Bill be amended to ensure the availability of rehabilitation programs to offenders that may be subject to the continuing detention order regime.[72]

Key issues and provisions

The Bill proposes to insert the continuing detention order scheme as a new Division 105A in Part 5.3 of the Criminal Code (item 1 of Schedule 1 to the Bill).

Proposed subsection 105A.(3)(1) provides that a continuing detention order may be made in relation to a person (the terrorist offender) if:

(a) the person has been convicted of:

(i) an offence against Subdivision A of Division 72 of the Criminal Code (international terrorist activities using explosive or lethal devices); or

(ii) an offence against Subdivision B of Division 80 (treason); or

(iii) a serious Part 5.3 offence; or

(iv) an offence against Part 5.5 (foreign incursions and recruitment); and

(b) either:

(i) the person is detained in custody and serving a sentence of imprisonment for the offence; or

(ii) a continuing detention order or interim detention order is in force in relation to the person; and

(c) if subparagraph (b)(i) applies – the person will be at least 18 years old when the sentence ends.

Application of the Bill to treason offences

The Law Council of Australia recommended that the Bill should not apply to a person convicted of Subdivision B of Division 80 of the Criminal Code treason offences, absent any underlying rationale for the extension.[73] The PJCIS also recommended the removal of the treason offences from the scope of the Bill.[74]

The treason offences are captured by the definition of 'terrorism offence' in section 3 of the Crimes Act 1914, which is the provision on which proposed paragraph 105A.3(1)(a) is based.[75] Both definitions capture an 'offence against Subdivision B of Division 80 of the Criminal Code (treason)'. As well as the principal offence of treason, this Subdivision also includes 'materially assisting enemies at war with the Commonwealth' and 'assisting countries etc. engaged in armed hostilities against the [Australian Defence Force] ADF' under section 80.1AA.

With the current fight against ISIS, it is possible that Australians who materially assist this enemy could be charged with the offence in Division 80 and sentenced to a maximum period of life imprisonment. However, the technicalities around definitions of 'engaging in a war with the Commonwealth' and who the 'enemy' is (declared by Proclamation), would likely result in lower prospects of successful prosecution than might exist under the terrorism laws in Part 5.3.

While the existing definition does seem to be legally sound, by basing it on the Crimes Act definition, there may be some argument to say the net has been cast wide in terms of defining who may be subject to a continuing detention order. The AHRC noted in its submission that the declared areas offence in section 119.2 of the Criminal Code and the offence of publishing recruitment advertisements in subsections 119.7(2) and (3) are questionable inclusions in this definition for the purposes of the CDO regime even though they fall under Part 5.3 of the Criminal Code.[76] These offences do not require the critical element of intention which means that if the person publishes an advertisement and the person is reckless as to the facts that doing so is for the purpose of recruiting persons to serve in or with an armed force in a foreign country, they can be found guilty of an offence. Further justification for their inclusion in this Bill, where there are serious long-term consequences for an offender, should be sought.

The offender must pose an ‘unacceptable risk’

To issue a continuing detention order, the court must be satisfied, to a high degree of probability on the basis of admissible evidence, that the offender poses an unacceptable risk of committing a serious terrorism offence against Part 5.3 of the Criminal Code (which carries a maximum penalty of at least seven years’ imprisonment) if the offender was released into the community. The Court must also be satisfied that there is no other less restrictive measure that would be effective in preventing the unacceptable risk, such as a control order (proposed section 105A.7). The lack of definition of ‘unacceptable risk’ is justified in the Explanatory Memorandum as a matter to be left ‘open to the Court to apply flexibly on an individual basis’.[77] This is a significant departure from a similar type of order—albeit lasting for a shorter time—the preventative detention order. The criteria for a preventative detention order are that the AFP suspects on reasonable grounds that a terrorist act may occur and that issuing the order would substantially assist in preventing a terrorist act occurring; section 105.4(4) of the Criminal Code. In its submission to the PJCIS’ Inquiry into the Bill, the Law Council of Australia submitted that the unacceptable risk test is not appropriate in the case of terrorist offences for a number of reasons; in particular noting that the ‘concept of risk is too fluid and ... may be very subjective. The qualifier – “unacceptable” – does little or nothing to change that high level of subjectivity.’[78] The Parliament may wish to consider giving greater clarity over what might be ‘unacceptable risk’ by way of a list of criteria or a further guidance for the Court to consider.

Rule of evidence to apply

The PJCIS addressed this issue in part by recommending that proposed section 105A.8 be amended to make clear that the rules of evidence apply to the matters the Court is required to have regard to in its decision as to whether the terrorist offender poses an unacceptable risk of committing a terrorism offence if released into the community.[79]

Risk Assessment

The AHRC submitted that ‘for any system of preventative detention to be justifiable, it must be possible to make robust predictions about the likelihood of future risk.’[80] The AHRC expressed concern that the Bill as currently drafted does little to ensure that relevant experts are appropriately qualified and that their assessments of risk make use of best practice methodology, and went so far as to recommend the establishment of an independent Risk Management Body (recommendation 5) to develop, amongst other things, best practice risk assessment and risk management processes, guidelines and standards.[81]

ANU Associate Professor Dr Mark Nolan provided a detailed submission that recommended against aspects of this proposal in its current form based on a number of factors, including the ‘absence of appropriate rehabilitation (deradicalisation or disengagement) and through care programming in Australian prisons (or any other future places of detention) for offenders charged with and/or serving time for terrorist offences.’[82] Most importantly in relation to this aspect of the Bill, Dr Nolan emphasised that the lack of terrorism-specific and expert assessment tools may result in decisions based on groups and classes of offenders ‘rather than on the psychological orientations towards reoffending and the criminogenic thinking of a particular individual prison[er] incarcerated for a relevant terrorism offence.’[83]

The proposed continuing detention order’s interaction with the control order scheme

Division 104 of the Criminal Code outlines the control order regime. A control order is issued by a court and can limit a person’s movements, communications, ownership or use of certain things, activities or access to certain technology including the internet, with the aim to prevent a terrorist act from occurring. A person can be subject to a control order if it would substantially help prevent a terrorist attack or the person has: trained or participated in training with a listed terrorist organisation, or engaged in a hostile activity in a foreign country, or has been convicted of terrorism or specified terrorism-related offences.[84] The control order regime is premised on an assumption that the persons who may pose a terrorist risk are already in the community. Currently, Division 104 of the Criminal Code requires the AFP to apply first for an interim control order (so that the conditions can apply for the full duration of the order). It is unclear whether the legislation would support the Australian Federal Police commencing control order proceedings at the time of considering a continuing detention order.[85] Amendments would need to be considered carefully here as the issuing courts are different for control orders and the proposed continuing detention orders:

... [U]nder the [Criminal Code Amendment (High Risk Terrorist Offenders) Bill, the Court will not be able to make a control order as an alternative to a continuing detention order. This is because the two regimes are distinct with different procedural and threshold requirements. If a Court does not make a continued detention order, the Australian Federal Police (AFP) will need to consider whether to seek a control order. A fundamental practical issue will be the timing of seeking a control order.[86]

If this scheme were to commence in the proposed form and an offender was released from prison and not subject to a continuing detention order for reasons that the Court is not satisfied that there is an unacceptable risk to the community if the person is released, the existing control order and preventative detention order schemes would still be applicable, should the authorities consider that there is a risk of a terrorist act occurring. However, further examination is required of the practical difficulties that might arise at the time the terrorist offender is released from prison. There are different procedural and threshold requirements for control orders compared with the proposed continuing detention orders. Further, the swift manner in which a terrorist act can occur might make it preferable that a control order be issued while a prisoner is still serving a sentence for terrorism offences, thus providing an alternative for the court to consider.

The key point made by the Australian Human Rights Commission is that control orders may only be made by an ‘issuing court’ (currently the Federal Court, the Family Court or the Federal Circuit Court) while the Bill proposes that continuing detention orders be made by the Supreme Court of a state or territory. The fact that different courts are required to deal with each of these regimes means that if the Supreme Court decides that it should not make a continuing detention order because a control order would be more appropriate, a separate application would need to be made by the Australian Federal Police to a different court in order for a control order to be made.[87]

The usual burden of proof for imprisoning people for criminal offences is ‘beyond reasonable doubt’. The Government has considered this to be too high a threshold for predicting future activity so the civil standard has been applied here, on the balance of probabilities.

Role of ‘relevant experts’

Proposed section 105A.6 allows the appointment by the court of a ‘relevant expert’ to conduct an assessment and provide a report to the court on the offender’s risk of committing a serious Part 5.3 offence if the offender is released into the community. The court is required, under proposed section 105A.8, to take into account any report received from a relevant expert in deciding whether a person poses an unacceptable risk of committing a serious Part 5.3 offence if released into the community. A ‘relevant expert’ is defined in proposed section 105A.2 as being any of the following persons who is competent to assess the risk of a terrorist offender committing a serious part 5.3 offence if the offender is released into the community:

(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 Psychiatrist;

(b) any other person registered as a medical practitioner under a law of a State or Territory;

(c) a person registered as a psychologist under a law of a State or Territory;

(d) any other expert.

Parties are also permitted to call their own ‘relevant experts’ under proposed section 105A.14, which may be considered a safeguard for offenders to ensure procedural fairness.[88] However it might be difficult practically for courts to be presented with numerous and different expert views in this context. More detail on the implementation of this safeguard would be welcome. There is also no explanation about who might be considered ‘any other expert’ under subsection (d) and whether this might include non-medical experts such as criminologists or religious counsellors or teachers. Further, the Law Council of Australia submitted on the definition of ‘relevant expert’ that ‘the inclusion of ‘any other expert registered as a medical practitioner under a law of a State or Territory’ in the definition of ‘relevant expert’ should be removed’.[89]

Human rights implications

The Government has acknowledged that the Bill engages a range of human rights and noted that to the extent that it limits some rights, those limitations are reasonable, necessary and proportionate in achieving a legitimate objective.[90] In the Statement of Compatibility with Human Rights, the Government states that terrorism is a significant threat to national security and public safety. Politically motivated violent acts can indiscriminately threaten the lives and physical safety of Australian citizens. This can perpetuate a climate of fear which is socially divisive, threatening the cohesiveness of Australian society.[91]

This Digest identifies a number of human rights issues that will affect those subject to a continuing detention order and where there may still be some debate about their reasonableness and need.

Unlawful deprivation of liberty

The critical question with this Bill is the extent to which it is in conflict with Article 9(1) of the International Covenant on Civil and Political Rights (ICCPR), which provides that a person must be detained lawfully and that any detention must not be arbitrary, meaning that it must not be inappropriate or, unjust and must be predictable.[92] On balancing the objective of community safety, the proposed regime needs to be proportionate with the infringement on the person’s liberty. The Australian Human Rights Commission considered this closely and recommended safeguards that could improve the operation of the scheme to achieve better human rights outcomes.[93]

Further, the Senate Scrutiny of Bills Committee reported that the provisions allowing for a terrorist offender to ultimately be treated and detained in the same manner and in the same area as persons serving prison sentences appear to undermine the stated non-punitive nature of the scheme.[94] The Committee has sought the
Attorney-General’s advice as to what the likely conditions of detention would be for a person under a continuing detention order.

Retrospective punishment for the same conduct?

The Senate Scrutiny of Bills Committee reported its concerns about the extent to which ‘the assessment of whether or not a person poses an unacceptable risk to the community is prior conviction for an offence ... If the continuing detention is triggered by past offending, then it can plausibly be characterised as retrospectively imposing additional punishment for that offence.’[95]

In considering this and other human rights issues, the Parliamentary Joint Committee on Intelligence and Security acknowledged the impact that continuing detention orders may have upon civil liberties and noted that the PJCHR had concluded that ’the number and variety of safeguards in the Bill may support a finding that the regime is necessary, reasonably and proportionate’.[96]

Alternatives to a Continued Detention Order

An alternative to this scheme would be to adopt a wait-and-see approach and to persist with non-legislative measures to address the concern that convicted terrorist offenders may reoffend. These might include promoting disengagement, promoting deradicalisation in prison, changing cognitive behavioural and attitudinal characteristics of the prisoner by improving education and employment skills, improve problem solving and critical thinking and promoting peaceful religious views.[97] More resources directed into countering violent extremism in the prison environment may lead to better outcomes than continuing detention orders for convicted terrorist offenders. However, it is recognised that should this path be pursued and a released terrorist offender was subsequently involved in a terrorist attack, the community’s confidence in the Government’s ability to address national security risks would be compromised.

Key provisions

Schedule 1

Schedule 1 of the Bill will insert a new Division 105A - Continuing detention orders into the Criminal Code, the object of which is to ensure the safety and protection of the community by providing for the continuing detention of terrorist offenders who pose an unacceptable risk of committing serious Part 5.3 offences if released into the community (proposed section 105A.1).

Key definitions in proposed section 105A.2 include:

continuing detention order means an order made under subsection 105A.7(1)
relevant expert means any of the following persons who is competent to assess the risk of a terrorist offender committing a serious Part 5.3 offence if the offender is released into the community:

(a) a person who is:

(i) registered as a medical practitioner under a law of a State or Territory; and

(ii) a fellow of the Royal Australian and New Zealand College of Psychiatrists;

(b) any other person registered as a medical practitioner under a law of a State or Territory;

(c) a person registered as a psychologist under a law of a State or Territory;

(d) any other expert.
serious Part 5.3 offence means an offence against this Part, the maximum penalty for which is 7 or more years of imprisonment.

Proposed section 105A.3 outlines the conditions under which a continuing detention order may be made. A continuing detention order may be made under proposed section 105A.7 in relation to a person (the terrorist offender) if the person has been convicted of offences relating to international terrorist activities using explosives or lethal devices (Subdivision A of Division 72 of the Criminal Code), treason (Subdivision B of Division 80), a serious Part 5.3 offence (terrorism) or a foreign incursions and recruitment offence (Part 5.5) and either the person is detained in custody and serving a sentence of imprisonment for the offence; or a continuing detention order or interim detention order is in force in relation to the person; and, if applicable, the person will be at least 18 years old when the sentence ends (proposed paragraphs 105A.3(1)(a)–(c)).

The treatment of a terrorist offender in a prison under a continuing detention order is defined by what they are not. That is, under proposed subsection 105A.4(1) the person must be treated in a way that is appropriate to his or her status as a person who is not serving a sentence of imprisonment, subject to any reasonable requirements necessary to maintain:

(a) the management, security or good order of the prison; and

(b) the safe custody or welfare of the offender or any prisoners; and

(c) the safety and protection of the community (proposed subsection 105A.4(1)).

Proposed subsection 105A.4(2) outlines that the terrorist offender must not be accommodated or detained in the same area or unit of the prison as persons who are in prison for the purpose of serving sentences of imprisonment unless:

(a) it is reasonably necessary for the purposes of rehabilitation, treatment, work, education, general socialisation or other group activities; or

(b) it is necessary for the security or good order of the prison or the safe custody or welfare of the offender or prisoners; or

(c) it is necessary for the safety and protection of the community or

(d) the offender elects to be so accommodated or detained.

The court process for the making of an application for a continuing detention order is prescribed by proposed section 105A.5, requiring the application to be made by the Attorney-General, or a legal representative of the Attorney-General, to a Supreme Court of a state or territory. The time in which this can occur is outlined at proposed subsection 105A.5(2):

(2) However, the application may not be made more than 6 months before the end of:

(a) a sentence of imprisonment referred to in subparagraph 105A.3(1)(b)(i) that the offender is serving, at the end of which the offender would be required to be released into the community; or

(b) if a continuing detention order is in force in relation to the offender – the period for which the order is in force.

The application is required to 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 include information about the offender’s age; and request that the order be in force for a specified period (proposed subsection 105A.5(3)) A Note to this paragraph also requires that the period must not be more than three years as per proposed subsection 105A.7(5).

The offender must be provided with a copy of the application, personally, within two business days after the application is made (proposed subsection 105A.5(4)) however the content is restricted to that which the Attorney-General is not likely to:

(a) give a certificate under Subdivision C of Division 2 of Part 3A of the National Security Information (Criminal and Civil Proceedings) Act 2004;[98] (civil proceedings certificates, relating to non-disclosure on the grounds that it may prejudice national security)

(b) seek an arrangement under section 38B of that Act (relating to the handling of national security information) ;

(c) make a claim of public interest immunity

(d) seek an order of the Court preventing or limiting disclosure of the information (proposed paragraphs 105A.5(5)(a)-(d))

The Explanatory Memorandum provides an example of how this provision may be used:

... the Attorney-General may wish to seek suppression orders to ensure that the information in the application can be protected from release to the broader public. The provision will enable the
Attorney-General to give a redacted copy of the application to the offender until the Court has dealt with the suppression order application. It will not prevent the material that the Attorney-General seeks to rely on in the application from ultimately being disclosed to the offender.[99]

As discussed under key issues, proposed section 105A.6 relates to the appointment of and assessment by a relevant expert. The provision requires that the Court hold a preliminary hearing to determine whether to appoint one or more relevant experts. The appointed relevant expert must:

(a) conduct an assessment of the risk of the offender committing a serious Part 5.3 offence if the offender is released into the community; and

(b) provide a report of the expert’s assessment to the Court, the Attorney-General and the offender (proposed subparagraphs 105A.6(4)(a) and (b)).

Proposed subsection 105A.6(6) requires that the Court must ensure that the effect of subsection (5) (that the offender attend the assessment) and proposed paragraph 105A.8(b) (that any report received from a relevant expert and the level of the offender’s participation in the assessment by the expert will be taken into account by the Court) is explained to the offender. The Explanatory Memorandum adds that the Court is not required to explain the effect of these provisions to the offender itself.[100]

Proposed subsection 105A.6(7) outlines what the report must contain:

(a) the expert’s assessment of the risk of the offender committing a serious Part 5.3 offence if the offender is released into the community;

(b) reasons for that assessment;

(c) the pattern or progression to date of behaviour on the part of the offender in relation to serious Part 5.3 offences, and an indication of the nature of any likely future behaviour on his or her part in relation to serious Part 5.3 offences;

(d) efforts made to date by the offender to address the causes of his or her behaviour in relation to serious Part 5.3 offences, including whether he or she 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 him or her;

(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 Part 5.3 offence if the offender is released into the community;

(h) any other matters the expert considers relevant.

To make a continuing detention order, the Court needs to be satisfied to a high degree of probability, on the basis of admissible evidence, that the offender poses an unacceptable risk of committing a serious Part 5.3 offence if the offender is released into the community; and the Court is satisfied that there is no less restrictive measure that would be effective in preventing the unacceptable risk (proposed subsection 105A.7(1)).

The order must specify the period during which it is in force (which must be no more than three years). The period must be no longer than the Court is satisfied is reasonably necessary to prevent the unacceptable risk (proposed subsection 105A.7(5)). More than one continuing detention order can be made and there is no limit to the number of such orders that can be made.

With no specified weight given to each criterion, the Court must have regard to the following matters when deciding whether it is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious Part 5.3 offence if released into the community:

the safety and protection of the community
the report of any Court appointed expert, and the level of the offender’s participation in the assessment by the expert
the results of any other assessment conducted by a relevant expert of the risk of the offender committing a serious Part 5.3 offence, and the level of the offender’s participation in any such assessment
reports prepared by relevant corrective services and other authorities competent to assess the extent to which the offender can be reasonably and practically managed in the community
the offender’s participation in any treatment and rehabilitation programs
the offender’s compliance with obligations while on parole for any offence, or subject to a continuing or interim detention order
the offender’s criminal history
views of the sentencing court at the time the relevant sentence of imprisonment was imposed
any other information as to the risk of the offender committing a serious Part 5.3 offence
and any other matter the court considers relevant [proposed section 105A.8].

An interim detention order may also be issued, under proposed section 105A.9. The purpose of an interim detention order is to ensure that an interim measure can be put in place when the terrorist offender’s sentence, or existing continuing detention order, will come to an end before the Court has been able to make a decision on whether to make the continuing detention order. An interim detention order can be no longer than 28 days (proposed subsection 105A.9(5)). More than one interim detention order may be made, but such orders may not be imposed for more than three months in total (proposed subsection 105A.9(6)).

Subdivision D of proposed Division 105A requires review of the continuing detention order, either by periodic review or on application. After review the court must affirm or revoke the order. Proposed subsection 105A.12(4) provides that the Court may affirm the order if the Court has had regard to the matters referred to in section 105A.8 and is satisfied to a high degree of probability, on the basis of admissible evidence, that the offender poses an unacceptable risk of committing a serious Part 5.3 offence if the offender is released into the community; and the Court is satisfied that there is no other less restrictive measure, such as a control order, that would be effective in preventing the unacceptable risk. The Court is able to reduce the time period of the continuing detention order subject to proposed subsection 105A.12(7). The Court is required to reduce the term of the order if it is not satisfied that the period currently set out in the order is reasonably necessary to prevent the unacceptable risk.

Subdivision E of proposed Division 105A addresses matters relating to court proceedings, right of appeal (within 28 days of the decision, or by leave) and the status of the offender during the time a continuing detention order application or appeal is being considered and the sentence of imprisonment ends, or the continuing detention order or the interim detention order ends. Notably, proposed subsection 105A.13(1) notes that as orders are made in the civil jurisdiction in a state or territory Supreme Court, the rules of evidence and procedure for civil proceedings apply. However, there is an exception noted under proposed subsection 105A.13(2) which will allow the Court to receive the relevant terrorist offender’s criminal history in evidence, including prior convictions and findings of guilt in respect of any offences.

Schedule 2

Parts 1 and 2 of Schedule 2 contain consequential and contingent amendments. The consequential amendments include one amendment to the Surveillance Devices Act 2004 to allow agencies to use, communicate or give in evidence information obtained using powers in that Act for purposes related to new Division 105A of the Criminal Code (Schedule 2, Part 1, item 1).[101] Similarly, the Telecommunications (Interception and Access) Act 1979 (TIA Act) will be amended by item 2.[102] The Explanatory Memorandum summarises that these amendments:

... allow for information that was obtained in relation to the conviction of the original terrorism offence to be adduced in an application to keep the offender in detention to prevent the commission of a further terrorism offence.[103]

The consequential amendments include amending definitions of ‘permitted purposes’, ‘exempt proceeding’ and ‘lawfully accessed information’ in the TIA Act (items 3–5). Other key consequential amendments are contained in item 6 allowing an authorised officer in the AFP to authorise the use or to disclose information or documents obtained under an 180A or 180B authorisation (relating to existing and prospective information – enforcement of the criminal law of a foreign country), if it is reasonably necessary for the purposes of the new Division 105A.

The contingent amendments in Part 2 of Schedule 2 are related to the commencement of Schedule 9 of the Counter-Terrorism Legislation Amendment Act (No. 1) 2016. It may be that the Government amends this Part prior to the Parliamentary debate. At the time of publication of this Digest, the Counter-Terrorism Legislation Amendment Bill (No. 1) 2016 had passed the Parliament and is awaiting Royal Assent.[104]

Concluding comments

The policy behind this Bill has broadly been agreed to by COAG and the Australian Labor Party. Its successful passage depends on the Parliament’s consideration of the legal detail in the Bill, including the amendments recommended by the PJCIS. Prior to debate, the Government issued proposed amendments and a supplementary Explanatory Memorandum. The supplementary Explanatory Memorandum notes that the proposed amendments implement Recommendations 2–6, 8,9,11–13 and 15–20 ‘and address issues arising from further consideration of the Bill since its introduction’.[105]

The Attorney-General’s Department indicated in its submission to the PJCIS Inquiry, that the Government is considering a number of possible amendments to the Bill:

allowing the use and sharing of things seized under Part IAA and information and documents produced under Division 4B of the Crimes Act 1914 in relation to continuing detention order proceedings. For example, the possible amendment would allow any evidence seized during the execution of a search warrant for terrorism investigations to be used to support an application for, or proceedings related to, continuing detention orders and
addressing an oversight to ensure that any terrorist offender convicted of an offence under the now repealed Crimes (Foreign Incursions and Recruitment) Act 1978 who is serving a sentence of imprisonment for that offence may be subject to a continuing detention order.[106]

[1]. A terrorist offender is a defined term in this Bill, in proposed subsection 105A.3(1) meaning a person who has been convicted of:

(i) an offences against Subdivision A of Division 72 (international terrorist activities using explosive or lethal devices); or

(ii) an offence against Subdivision B of Division 80 (treason); or

(iii) a serious Part 5.3 offence; or

(iv) an offence against 5.5 (foreign incursions and recruitment) and

is either detained in custody and serving a sentence of imprisonment for the offence; or a continuing detention order or interim detention order is in force in relation to the person; and if imprisoned, the person will be at least 18 years old when the sentence ends.

[2]. Other legislation includes National Security Legislation Amendment Act (No. 1) 2014, Counter-Terrorism Legislation Amendment Act (No. 1) 2014, Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014, Counter-Terrorism Legislation Amendment Bill (No. 1) 2015, Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015, Counter-Terrorism Legislation Amendment Bill (No. 1) 2016. Links are to the relevant Bills Digests.

[3]. Council of Australian Governments (COAG), Communique, COAG meeting, Sydney, 11 December 2015. Previously known as the National Counter-Terrorism Committee, New Zealand became a member in September 2012 and the Committee’s name was changed to Australia-New Zealand Counter-Terrorism Committee. Further information about the Committee can be found on the Australian National Security website.

[4]. COAG, Communique, COAG meeting, Canberra, 1 April 2016. As at 27 November 2016, NSW has not introduced the legislation. The NSW Parliament passed the Crimes (High Risk Offenders) Amendment Bill 2016 which commenced on 7 June 2016 but this Act makes provisions with respect to persons convicted of serious violent offences, not terrorism offences. The NSW Attorney-General noted in her second reading speech for that Bill that a statutory review of the Crimes (High Risk Offenders) Act 2006 is now underway, to consider options for better managing high-risk offenders and whether the factors the Supreme Court is required to consider in making an order for continuing detention or extended supervision align with the Act's objectives. That report is due to be completed by March 2017.

[5]. M Turnbull (Prime Minister) and G Brandis (Attorney-General), Press conference, Sydney, transcript, 25 July 2016.

[6]. COAG, Meeting of Attorneys-General on post sentence preventative detention: communique, COAG meeting, Canberra, 5 August 2016.

[7]. COAG, Agreement on Counter-terrorism Laws, COAG, 25 June 2004.

[8]. COAG, Meeting of Attorneys-General on post sentence preventative detention, op. cit.

[9]. G Brandis, ‘Second Reading Speech: Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016’, Senate, Debates, 15 September 2016, pp. 1029–1036.

[10]. This is a complex question of constitutional law. For academic consideration, see J Renwick ‘The constitutional validity of preventative detention’, in A Lynch, E MacDonald and G Williams, eds, Law and liberty in the war on terror, Federation Press, Leichardt, 2007; J Gordon ‘Imprisonment and the separation of judicial power: a defence of a categorical immunity from non-criminal detention’, Melbourne University Law Review, 36(1), 2012, pp. 41–103; and P Fairall and W Lacey ‘Preventative detention and control orders under federal law: the case for a Bill of Rights’, University of Melbourne Law Review, 31(3), 2007, pp. 1072–1098.

[11]. Preventative detention orders were issued in September 2014 in New South Wales in what was reported as the first time these orders were used. P Farrell, ‘Detention orders obtained before anti-terrorism raids were carried out’, The Guardian, (online edition), 19 September 2014.

[12]. This relates to the practical difficulties in the implementation of proposed subsection 105A.7(1)(c) which provides that the Court is satisfied that there is no other less restrictive measure that would be effective in preventing the unacceptable risk, such as a control order. However, this scheme in its current form does not permit the court to make such a control order as the alternative.

[13]. Turnbull and Brandis, Press conference, Sydney, op. cit. In its response to Questions on Notice asked at a public hearing by the Parliamentary Joint Committee on Intelligence and Security, the Attorney-General’s Department has stated that the Department received advice on the constitutional validity of the Bill from both the Australian Government Solicitor and the Solicitor-General and no members of the private bar were asked to advise on the Bill (p. 11).

[14]. Brandis, ‘Second Reading Speech: Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016’, op. cit., pp. 1029–1036.

[15]. Fardon v Attorney-General (Qld) (2004) 223 CLR 575, [2004] HCA 46, per Callinan and Heydon JJ – at 219.

[16]. A Lynch ‘Thomas V Mowbray: Australia’s “War on terror” reaches the High Court’, Melbourne University Law Review, 32(3), 2008, p. 37, citing Thomas v Mowbray (2007) 233 CLR 307, [2007] HCA 33 at paragraphs [30]–[31] (per Gleeson CJ and pp. 355–358 at paragraphs [111]–[126].

[17]. Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 [1996] HCA 24.

[18]. Ad hominem legislation is that which is directly targeted to affect an individual; ‘Ad hominem’, Encyclopaedic Australian Legal Dictionary, LexisNexis Australia, Chatswood, 2011.

[19]. R Ananian-Welsh, ‘Preventative detention orders and the separation of judicial power’, University of New South Wales Law Journal, 38(2), 2015, p. 756.

[20]. R Ananaian-Welsh, N McGarrity, T Tulich and G Williams, Submission, no. 6, to Parliamentary Joint Committee on Intelligence and Security, Inquiry into the Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016, 12 October 2016, p. 6.

[21]. Parliamentary Joint Committee on Intelligence and Security, Advisory report on Criminal Code (High Risk Terrorist Offenders) Bill 2016, Commonwealth of Australia, Canberra, November 2016, p. xi, Recommendation 1. The Attorney-General’s Department responded to a Question on Notice that the Australian Government Solicitor and the Solicitor-General had received advice on the constitutional validity of the Bill, see Footnote 5.

[22]. J Norberry, Criminal Code Amendment (Terrorism) Bill 2002, Bills Digest, 89, 2002–03, Department of the Parliamentary Library, Canberra, 21 January 2003.

[23]. Brandis, ‘Second Reading Speech: Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016’, op. cit., pp. 1029–1036.

[24]. Law, Crime and Community Safety Council (LCCSC), Communique, LCCSC meeting, Melbourne, 21 October 2016.

[25]. Turnbull and Brandis, Press conference, Sydney, op. cit.

[26]. For an indication of who has been convicted of terrorism offences under the Criminal Code, see ‘Attachment D – table of terrorism trials’, source: COAG, Council of Australian Governments review of counter-terrorism legislation, COAG, Canberra, 2013, pp. 101–111. The Attorney-General’s Department further indicated in its submission that there are 16 convicted terrorist offenders presently serving time in prison. AGD, Submission, no. 9, to Parliamentary Joint Committee on Intelligence and Security, Inquiry into the Criminal Code Amendment (High Risk Terrorist Offender) Bill 2016, 12 October 2016.

[27]. Turnbull and Brandis, Press conference, Sydney, op. cit.

[28]. Ibid; D Smith, R Luscombe, E Pilkington and A Gumbel, ‘How the Orlando shooting unfolded: “he came in with the intent of evil”’, The Guardian, (online edition), 18 June 2016; S Jones, ‘Nice attack: truck driver named as France mourns 84 killed in Bastille Day atrocity - as it happened’, The Guardian, (online edition), 16 July 2016.

[29]. G Williams, ‘A decade of Australian anti-terror laws’, Melbourne University Law Review, 35(3), 2011, p. 1136.

[30]. T Legrand, S Bronitt and M Stewart, ‘Evidence of the impact of counter-terrorism legislation’, in G Lennon and C Walker (Eds), Routledge Handbook of Law and Terrorism, Routledge, London, 2015, p. 298.

[31]. C Smith and M Nolan ‘Post-sentence continued detention of high-risk terrorist offenders in Australia’, Criminal Law Journal, 40(3), June 2016, p. 163.

[32]. Ibid., p. 164.

[33]. AGD, ‘Countering violent extremism’, AGD website.

[34]. Brandis, ‘Second Reading Speech: Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016’, op. cit., p. 1034.

[35]. T Veldhuis, Prisoner radicalization and terrorism detention policy: institutionalized fear or evidence-based policy making?, Routledge, New York, 2016, p. 141.

[36]. Brandis, ‘Second Reading Speech: Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016’, op. cit., pp. 1029–1036.

[37]. Parliamentary Joint Committee on Intelligence and Security, ‘Criminal Code Amendment (High Risk Terrorist Offenders Bill 2016’, Inquiry homepage.

[38]. Parliamentary Joint Committee on Intelligence and Security, Advisory Report on the Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016, op. cit., p. 125.

[39]. Ibid., p. 126, para 4.96.

[40]. Ibid., p. 126, para 4.97.

[41]. Ibid., Recommendation 24.

[42]. Ibid., Recommendation 16 also recommended that the Government consider whether the existing control order regime could be further improved to most effectively operate alongside the proposed continuing detention order regime. Any potential changes should be developed in time to be considered as part of the reviews of the control order legislation to be completed by the Independent National Security Legislation Monitor (INSLM) [currently a vacant position] by 7 September 2017 and the Parliamentary Joint Committee on Intelligence and Security (PJCIS) by 7 March 2018.

[43]. Parliamentary Joint Committee on Intelligence and Security, Advisory Report on the Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016, op. cit., pp. xi–xvi.

[44]. Ibid., p. 124, para 4.87 (emphasis added).

[45]. Senate Standing Committee for the Scrutiny of Bills, Alert digest, 7, 2016, The Senate, 12 October 2016, p. 55.

[46]. Ibid.

[47]. Ibid.

[48]. Senate Standing Committee for the Scrutiny of Bills, Report, 8, The Senate, 9 November 2016, p.455; Senate Standing Committee for the Scrutiny of Bills, Report, 9, The Senate, 23 November 2016.

[49]. M Doran, ‘Terrorists could be detained indefinitely under Federal Government proposal’, ABC News, (online edition), 25 July 2016.

[50]. S Maiden, ‘Leave them caged: new laws to deny jailed terrorists their freedom’, Sunday Herald Sun, 30 October 2016, p. 2.

[51]. Law Council of Australia, Submission, no. 4, to Parliamentary Joint Committee on Intelligence and Security, Inquiry into the Criminal Code Amendment (High Risk Terrorist Offender) Bill 2016, 12 October 2016, p. 6.

[52]. Ibid., p. 13.

[53]. Ibid., p. 16.

[54]. Ibid., p. 18.

[55]. Ibid., p. 5.

[56]. Australian Human Rights Commission, Submission, no. 8, to Parliamentary Joint Committee on Intelligence and Security, Inquiry into the Criminal Code Amendment (High Risk Terrorist Offender) Bill 2016, 12 October 2016, p. 3.

[57]. Ibid.

[58]. Ibid., p. 17

[59]. Ibid., p. 4.

[60]. Ibid., p. 5.

[61]. Ibid., p. 25.

[62]. Ibid., p. 6.

[63]. Civil Liberties Australia, Submission, no. 2, to Parliamentary Joint Committee on Intelligence and Security, Inquiry into the Criminal Code Amendment (High Risk Terrorist Offender) Bill 2016, 10 October 2016, p. 1.

[64]. Ananaian-Welsh et al, Submission to Parliamentary Joint Committee on Intelligence and Security, op. cit., p. 1.

[65]. Parliamentary Joint Committee on Intelligence and Security, Advisory report on the Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016, op. cit., pp. 125–126.

[66]. Explanatory Memorandum, Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016, p. 2.

[67]. The Statement of Compatibility with Human Rights can be found at pages 3–13 of the Explanatory Memorandum to the Bill.

[68]. Parliamentary Joint Committee on Human Rights, Report 7 of 2016, 11 October 2016; and Parliamentary Joint Committee on Human Rights, Report 8 of 2016, 9 November 2016.

[69]. Parliamentary Joint Committee on Human Rights, Report 7 of 2016, op. cit., p. 14.

[70]. Ibid., p. 15.

[71]. Ibid., pp. 19–20.

[72]. Ibid., p. 20.

[73]. Law Council of Australia, Submission to the Parliamentary Joint Committee on Intelligence and Security, op. cit., p. 19.

[74]. Parliamentary Joint Committee on Intelligence and Security, Advisory report on the Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016, op. cit., p. xi, recommendation 2. Note, however, that the text of the recommendation erroneously refers to ‘section 80(B)’, and should refer to Subdivision B of Division 80 as per proposed paragraph 105A.3(1)(a)(ii).

[75]. Crimes Act 1914.

[76]. Australian Human Rights Commission, Submission, no. 8, to the Parliamentary Joint Committee on Intelligence and Security, Inquiry into the Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016, 12 October 2016, pp. 17–18.

[77]. Explanatory Memorandum, Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016, op. cit., p.21.

[78]. Law Council of Australia, Submission to the Parliamentary Joint Committee on Intelligence and Security, op. cit., p. 19.

[79]. Parliamentary Joint Committee on Intelligence and Security, Advisory Report on the Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016, op. cit., p. xii, recommendation 6.

[80]. Australian Human Rights Commission, Submission to the Parliamentary Joint Committee on Intelligence and Security, op. cit., p. 18.

[81]. Ibid., p. 5.

[82]. M Nolan, Submission, no. 13, to Parliamentary Joint Committee on Intelligence and Security, Inquiry into the Criminal Code Amendment (High Risk Terrorist Offender) Bill 2016, 12 October 2016, p. 3–6.

[83]. Ibid., p. 8.

[84]. AGD, ‘Control orders’, AGD website; Also see Division 104 of the Criminal Code.

[85]. D Wroe, ‘Snag in plans to hold unreformed terrorists in jail’ Sydney Morning Herald, 15 October 2016, p. 7.

[86]. G Brandis, ‘Appendix C: letter from the Attorney-General dates 13 October 2016’, in Parliamentary Joint Committee on Intelligence and Security, Advisory report on Criminal Code (High Risk Terrorist Offenders) Bill 2016, Commonwealth of Australia, Canberra, November 2016, pp. 135–37.

[87]. Australian Human Rights Commission, Submission, no. 8.1, to the Parliamentary Joint Committee on Intelligence and Security, Inquiry into the Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016, 20 October 2016, p. 8.

[88]. The court is obliged under proposed paragraph 105A.8(c) to have regard to the results of any other assessment conducted by a relevant expert, in addition to that of a court appointed expert under proposed section 105A.6.

[89]. Law Council of Australia, Submission to the Parliamentary Joint Committee on Intelligence and Security, op. cit., p. 17.

[90]. For the Statement of Compatibility with Human Rights see the Explanatory Memorandum, p.13.

[91]. Ibid., p. 12.

[92]. International Covenant on Civil and Political Rights, done in New York on 16 December 1966, [1980] ATS 23 (entered into force for Australia (except Art. 41) on 13 November 1980; Art. 41 came into force for Australia on 28 January 1994). Australian Human Rights Commission; Australian Human Rights Commission, Submission to the Parliamentary Joint Committee on Intelligence and Security, op. cit., p.13.

[93]. For further detail, see the Australian Human Rights Commission’s submission.

[94]. Senate Standing Committee for the Scrutiny of Bills, Alert digest, 7, 2016, op. cit., p. 57.

[95]. Ibid. p. 55.

[96]. Parliamentary Joint Committee on Intelligence and Security, Advisory Report on the Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016, op. cit., p. 24.

[97]. Veldhuis, Prisoner radicalization and terrorism detention policy, op. cit., p. 164.

[98]. National Security Information (Criminal and Civil Proceedings) Act 2004.

[99]. Explanatory Memorandum, Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016, op. cit., p. 20.

[100]. Ibid., p. 21.

[101]. Surveillance Devices Act 2004.

[102]. Telecommunications (Interception and Access) Act 1979.

[103]. Explanatory Memorandum, Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016, op. cit., p. 27.

[104]. Parliament of Australia, ‘Counter-Terrorism Legislation Amendment Bill (No. 1) 2016 homepage’, Australian Parliament website.

[105]. Supplementary Explanatory Memorandum, Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016, p. 2.

[106]. AGD, Submission to the Parliamentary Joint Committee on Intelligence and Security, op. cit., p. 16.

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