Division 105A of the Criminal Code Act 1995
Overview of the provisions
5.1
Section 105A of the Criminal Code Act 1995 (Criminal Code) provides for the use of a continuing detention order (CDO) against a terrorist offender who is deemed to pose an unacceptable risk of committing a serious Part 5.3 (Terrorism) offence if released into the community.
5.2
A CDO may be applied for if the subject of the CDO has been convicted of:
an offence against Subdivision A of Division 72 – (international terrorist activities using explosive or lethal devices);
a serious Part 5.3 offence;
an offence against Part 5.5 (foreign incursions and recruitment), except an offence against subsection 119.7(2) or (3) (publishing recruitment advertisements); or
an offence against the repealed Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth), except an offence against paragraph 9(1)(b) or (c) of that Act (publishing recruitment advertisements).
5.3
Further, the subject must either:
be detained in custody and serving a sentence of imprisonment for the offence; or
be the subject of a current CDO or interim detention order is currently in force in relation to the person.
5.4
Once in place, a CDO will commit the offender to detention in prison for the period the order is in force. This period must not be more than three years. Further, an arrangement with a State or Territory must be in force for an offender to be detained at a prison within that State or Territory. There is no eligibility for bail or parole whilst a CDO is in force.
Treatment of a terrorist offender in prison whilst under a continuing detention order
5.5
A terrorist offender who is detained under a CDO 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’.
5.6
For example, this includes that an offender must not be accommodated or detained in the area or unit of a prison where others are serving sentences of imprisonment. There are some exemptions to this set out in subsection 105A.4(2), which include:
it is reasonably necessary for the purposes of rehabilitation (e.g. treatment, work, education, general socialisation, group activities);
it is necessary for the security or good order of the prison;
it is necessary for the safe custody or welfare of the offender or prisoners;
it is necessary for the safety and protection of the community; or
the offender elects to be so accommodated or detained.
Making a continuing detention order
5.7
The AFP Minister or their legal representative may apply to the Supreme Court of a State or Territory for a CDO. This application cannot be made more than 12 months before the end of the sentence the offender is currently serving, or 12 months before the end of a current and existing CDO.
5.8
Following an application to the Supreme Court of a State or Territory, the Court must hold a preliminary hearing to determine whether to appoint one or more relevant experts. This hearing must be held within 28 days of a copy of the application being given to the offender.
5.9
The Court may, at the preliminary hearing or at any later time in the proceedings, appoint one or more ‘relevant experts’ if the Court decides that this would ‘materially assist the Court in deciding’ to make a CDO in relation to the offender.
5.10
The AFP Minister, the offender, and/or both parties’ legal representatives may nominate one or more relevant experts for this purpose.
5.11
The appointed relevant expert(s) must conduct an assessment of risk of allowing the terrorist offender into the community and provide a report of this assessment to the Court, the AFP Minister, and the offender. The offender must attend this assessment.
5.12
Following the preliminary hearing, a Supreme Court of a State or Territory may make a CDO if the ‘Court 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 released into the community. The Court must also be satisfied that there is ‘no other less restriction measure’, for example a control order, that would be effective in preventing the risk. Should this threshold not be met, the Court must dismiss the CDO application.
Matters a court must consider in making a continuing detention order
5.13
Section 105A.8 outlines the matters a court must have regard to prior to making a CDO. These include:
the safety and protection of the community;
any report received from a relevant expert, and the level of the offender’s participation in the assessment; and/or
treatment or rehabilitation programs in which the offender has had an opportunity to participate in, and their level of participation.
Interim detention orders
5.14
The AFP Minister, or their legal representative, may apply to a Supreme Court of a State or Territory for an interim detention order in relation to a terrorist offender, if an application for a CDO for the same offender has been made to the court.
5.15
The court may make such an interim order if it satisfied that the sentence of the terrorist offender or the existing CDO or interim detention order in place will end before the application for a CDO is determined. The court must also be satisfied that there are ‘reasonable grounds’ a CDO will be made in relation to the offender.
5.16
An interim detention order must not be longer than three months.
Review of a continuing detention order
5.17
Within 12 months of either the CDO being ordered or the most recent review having ended, the AFP Minister must apply to the Supreme Court of a State or Territory for a review of a current CDO.
5.18
A terrorist offender or their legal representative may also apply to the Supreme Court of a State or Territory for a review into their CDO. The Court may complete a review of the order if there are new facts or circumstances which would justify the review, or if it would be in the interests of justice to complete such a review.
5.19
Following the review, the Court may confirm, vary or revoke the order in place.
Other provisions
5.20
Subdivision E provides other provisions relating to continuing detention order proceedings including: providing documents to offenders, civil evidence and procedure rules, engagement of legal representation, reasons for decisions, the right of appeal, and the consequences of release.
Legislative history
5.21
On 15 September 2016, the then Attorney-General, Senator the Hon George Brandis QC, introduced the Criminal Code Amendment (High Risk Terrorism Offenders) Bill 2016 (the Bill) to the Senate and referred it to the Committee for inquiry and report.
5.22
In his second reading speech, the Attorney-General stated that since 2014 there had been 19 counter-terrorism operations in Australia, resulting in charges for 48 individuals. He noted that, at the time of the speech, there were 16 individuals serving sentences for terrorism offences in Victoria and New South Wales, with the first of these sentences due to expire in 2019.
5.23
The purpose of the Bill was to protect the community from terrorist acts by ‘enabling the continued detention of terrorist offenders serving custodial sentences who are assessed by a judge…to present an unacceptable risk to the community at the time their sentences finish.’
5.24
The Committee delivered its report on the Bill in November 2016. It made 24 Recommendations to the Government including:
that the INSLM complete a review of the CDO scheme five years after the Bill received Royal Assent and the Committee review it after six years;
that the CDO scheme have an initial sunset period of ten years; and
that the Attorney-General develop an implementation plan and provide a report on it to the Committee which would include information about:
the development and validation of risk assessment tools;
the qualifications and general categorisation of relevant experts;
progress on adapting existing oversight mechanisms for use in the CDO scheme; and
any other matters to relevant to the implementation of the scheme.
5.25
All recommendations of the report were accepted by the Government. The Bill passed the Senate and received royal assent on 7 December 2016.
5.26
This report is the first review of the CDO regime since it was passed into law.
Use of provisions
5.27
Since the scheme was introduced in 2016 until the end of 2020, no Commonwealth CDO order had been confirmed.
5.28
The AFP said that the threshold for a CDO has ‘proven to be a high threshold to meet’. The AFP said they have applied for control orders, rather than CDOs, for HRTO eligible offenders at the end of their custodial sentences.
5.29
On 10 February 2021, the High Court of Australia handed down its decision in Minister for Home Affairs v Benbrika (the Benbrika Decision) which upheld the Australian Government’s use of a CDO to continue to detain Mr Abdul Nacer Benbrika. Mr Benbrika was convicted in 2008 of two terrorism offences and was sentenced to 15 years imprisonment. His custodial sentence concluded on 5 November 2020.
5.30
The Minister for Home Affairs commenced proceedings in the Supreme Court of Victoria for an interim and continuing detention order and was granted both, with the CDO in force until 5 November 2023. The Court of Appeal of the Supreme Court of Victoria reserved a question for the consideration of the High Court about the validity of the CDO scheme. A majority of the Court found that the power to make a CDO was within the scope of the judicial power of the Commonwealth.
5.31
The High Court of Australia concluded that, taken as a whole, the CDO provision validly confers the judicial power of the Commonwealth on the Supreme Court of a State or Territory:
A majority of the Court held that a scheme that is appropriately tailored to protecting the community from the singular threat posed by terrorist criminal activity is capable of coming within an exception to the Lim principle analogous to other established exceptions that share a purpose of protection of the community from harm, such as detention of those suffering from mental illness or infectious disease. Taken as a whole, particularly as the power to make a CDO under Div 105A is conditioned on a judge being satisfied not only that the risk of the commission of certain offences is "unacceptable" but also that no other, less restrictive measure would be effective in preventing that risk, the division is rightly characterised as directed to ensuring the safety and protection of the community from the risk of harm posed by the threat of terrorism. Accordingly, Div 105A validly confers the judicial power of the Commonwealth on the Supreme Court of a State or Territory.
Necessity of the provisions
5.32
The supplementary submission by the Attorney-General’s Department, the AFP and the Department of Home Affairs (‘Joint-agency supplementary submission’) said there was a potential threat to the Australian community from released terrorist offenders:
The growing cohort of released terrorist offenders poses a potential threat to the Australian community. As at 24 July 2020, 86 individuals have been convicted of and sentenced for Commonwealth terrorism offences. Of these individuals, 45 were sentenced in the last three years, with a further 13 offenders due to be released into the Australian community following the expiry of their custodial sentences between 2020 and 2025.
5.33
The Joint-agency supplementary submission provided a list of 12 offenders that the Department had deemed eligible to be considered for a CDO application. Since providing that list, Mr Bilal Khazal has been released subject to a control order.
5.34
The Joint-agency supplementary submission said previous international terrorist attacks demonstrated the potential risk posed by convicted terrorist offenders re-entering into the community:
Experiences of other likeminded countries indicates the severity of this risk – in particular, the 2019 London Bridge and 2020 Streatham attackers in the United Kingdom (UK) were previously convicted terrorist offenders who had been released into the community. There is an enduring risk posed by post sentence offenders and a continued need for appropriate prevention and risk management measures.
5.35
The joint Academic Submission said that the objective of Division 105A was legitimate:
…the objective of Division 105A is legitimate. It seeks to prevent those who have served sentences for terrorism offences – but have not been rehabilitated during that period – from being released into the community.
5.36
The AHRC said that the CDO scheme could be a reasonable and necessary response to risk:
…a post-sentence preventative detention regime can be a reasonable and necessary response to the potential for risk to be posed by people convicted of terrorism related offences after the expiration of the period of their imprisonment.
5.37
At the time of seeking submissions, the case of Minister for Home Affairs v Benbrika had not been decided, and several submitters took the view that although the CDO regime had legitimacy, its lack of use raised questions about its necessity.
5.38
The AHRC said that it was aware of approximately ten cases since the provisions were introduced where an offender was warned about the CDO provisions:
The Commission is aware of approximately ten cases since these provisions were introduced where a person has been convicted of an offence to which Div 105A could apply, and where the offender was given a warning by the Court to that effect under s 105A.23.
The Commission is also aware of a number of cases since these provisions were introduced where a person convicted of a relevant terrorism offence has been released at the end of their sentence without any CDO being applied for. In eight cases, the AFP has sought and obtained control orders in relation to those offenders at the time that they were released.
Drawing inferences about future risk
5.39
As mentioned above, prior to issuing a CDO the court must be satisfied that the individual poses an unacceptable risk of committing a serious terrorism offence if released into the community. The Law Council said they were concerned with the rules governing the drawing of inferences from the past conduct of a person.
5.40
As control orders and CDOs are both civil orders, the rule for drawing inferences about future risk based on past conduct must be more probable than not. The Law Council stated that as these orders are a highly unusual kind of order, a more conservative approach to the rules of evidence should apply, ‘namely that the inference must be the only rational inference capable of being drawn from the evidence.’
5.41
The AHRC said that its primary concern with the CDO regime is the ability to accurately assess risk. An expert may use a range of psychosocial tools to determine the degree of risk including assessments related to personality, cognitive functioning, general criminal reoffending, general violence, family violence and substance abuse. However, the assessment of risk relies on a specialised violent extremism risk assessment tool known as VERA-2R.
Violent Extremism Risk Assessment Version 2 Revised (VERA-2R) assessment tool
5.42
As part of an application for a CDO, the Court may appoint a relevant expert should they consider that it will materially assist in deciding to make a CDO in relation to that offender. This expert will conduct an assessment of risk that the offender will commit a serious 5.3 offence and provide a report of their assessment. This report is provided to the Court, the AFP Minister and the offender.
5.43
The Department of Home Affairs said that VERA-2R assessments are generated in three ways to support the operation of the HRTO scheme:
historical VERA-2R assessments provide information in the pre-application evidence collection process. For example previous VERA-2R assessments of an offender conducted by a correctional psychologist;
current VERA-2R assessments by correctional staff and independent experts can be obtained to inform deliberations about the need for and prospects of a HRTO order; and
Court appointed experts may use VERA-2R as part of their assessment of the offender and to advise the Court.
5.44
The Department of Home Affairs said that ‘the VERA 2R assessment is the primary tool used to assist an expert’ in making this assessment and that the tool contains a number of indicators associated with violent extremism:
The VERA-2R is an assessment instrument that supports the user to identify and analyse a person’s risks of perpetrating a violent extremist act. It contains a number of indicators associated with violent extremism, derived from empirical research and consultation with law enforcement and intelligence practitioners.
The VERA-2R is designed to be used across different violent extremist ideologies, rather than being confined to a single form of violent extremism. It can be used in community and custodial settings for adults and young people. It can be used to assess changes in risk and need over time, for example during a prison sentence and prior to making a release decision.
5.45
VERA-2R uses indicators to identify factors in an offender’s life that may contribute to risk. The indicators are broadly organised into five domains including:
Beliefs, Attitudes, Ideology;
Social Context & Intention;
History, Action and Capacity;
Commitment Motivation; and
Protective/Risk Mitigating.
5.46
The Department of Home Affairs said that the overall risk is determined after the available evidence has been considered against the indicators in the tool:
The overall risk judgement is determined after the user has considered the available evidence which has been structured into the indicators in the tool. The structured approach and the inclusion of a comprehensive set of indicators assists the user to identify the most salient issues for that individual and formulate their assessment.
5.47
The Law Council said that the VERA-2R tool was not an appropriate tool to assess risk because it:
does not appear to have been internationally recognised and accepted as a best practice standard in risk assessment in relation to violent extremism or terrorism-related offending, and
the basis of the tool was purely based on literature and not on actual cases.
5.48
The Custodial Institutions Agency of the Government of the Netherlands, considered to be the leading department in the development and training of VERA-2R, said that the tool’s ‘predictive validity is problematic due to the low base rate of terrorists and violent extremists’.
5.49
The AHRC said it was concerned because the VERA-2R tool had:
a lack of independent statistical validation of VERA-2R in the Australian context; and
it relies on the expertise of the risk assessor as well as the information that is available to them.
5.50
The AFP said that it has participated in the delivery of VERA-2R training which included:
a three day interactive training course on risk assessment with particular reference to violent extremism; and
completion of a practical exercise in the form of a risk assessment using VERA-2R techniques with a hypothetical case study after the three day course.
The AFP said the case study is reviewed by a member of the Community of Practice consisting of VERA-2R trainers experienced in completing violent extremist risk assessments.
5.51
The AHRC also said that predictive validity was problematic due to unpredictable and dynamic factors:
Predictive validity is problematic due to the low base rate of terrorists and violent extremists. Moreover, extremists and terrorists may change their strategies, make unexpected decisions and use unpredictable triggers. Unpredictable and dynamic factors such as events at a personal, local or global level can also trigger unexpected violent acts. Due to such triggers and other dynamic factors, risks are time and context sensitive and are not able to be predicted with certainty. For each evaluation, limitations in the assessment must be clearly identified.
5.52
The AHRC said that in 2017 the tool was reviewed by the Victorian Expert Panel on Terrorism and Violent Extremism Prevention and Response Powers who assessed that it lacked ‘a validated body of evidence as to its efficacy’ in the context of assessing risk and managing post-sentence high risk terrorist offenders.
5.53
The Department of Home Affairs said that the VERA-2R tool was adopted as the primary assessment tool for the HRTO regime by the HRTO Commonwealth working group after a review of the relevant literature and on the advice of professional psychologists.
5.54
Dr Elaine Pressman, appearing in a private capacity said, on the predictive nature of VERA-2R, that:
…what the VERA does is to assist an analyst or a psychologist to evaluate an individual at a given point in time, because we're also dealing with dynamic indicators where individuals will change over time in either their commitment, their intention, their social contact or their networking. So, over time, you want to be able to establish a trajectory of risk and a trajectory on each one of the indicators. You also want to be able to use whatever evidence you have and structure it into what we know are established risk indicators. This will assist the individual analyst or clinician to make a risk judgement and to make an assessment of future risk based on the evidence, not based on subjectivity. By doing this, you may have a historical trajectory to comment on and you also have an evidence base that is delineated into relevant risk indicators to assist in clarifying the reason for the risk judgement that you are making.
5.55
The Department of Home Affairs said that the VERA-2R tool is based on significant academic research and a continuous feedback process:
The VERA-2R is currently based on more than twenty years of academic research and continuous feedback from academics and security, legal and forensic experts and practitioners. This includes experience in Australia and evidence from Australian convicted offenders.
It is difficult to rank violent risk assessment instruments as they have been developed for a variety of purposes, conditions and circumstance[s]. For example, some are designed around prison management needs, other to identify ‘lone actors’, and some only focus on specific ideologies. Further, instruments used to assess general violence and criminal behaviour do not identify many of the characteristics of violent extremist offenders.
5.56
The Department of Home Affairs said that the VERA-2R tool was used by experts in the CDO application in Minister for Home Affairs v Benbrikaas well as in a number of cases in the NSW Terrorist High Risk Offender scheme where the Department said it appeared the NSW Supreme Court actively relied on VERA-2R assessments.
5.57
The Committee considered the use of the VERA-2R tool in its inquiry into the Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2020. The Committee recommended that an independent review of VERA-2R and alternatives be undertaken, with findings report to the Parliament.
Treatment of those subject to continued detention
5.58
Existing legislation sets out the conditions of how an individual must be treated and accommodated should they be subject to an existing CDO.
5.59
The Law Council said that the treatment of a CDO subject should not be conditioned on the management or good order of a prison as set out in subsection 105A.1(1)(a):
The Law Council considers that the ‘management’ or ‘good order’ of a prison is not a legitimate basis on which to deny a CDO subject the right to be treated in a manner that is commensurate with their status as a person who is not serving a sentence of imprisonment. Rather, if a prison facility cannot accommodate a CDO subject in a way that is compatible with their status, it should not be permitted to detain the person under the CDO. Further, as recommended above, the Commonwealth should not be permitted to enter into an arrangement with a State or Territory to detain a CDO subject, unless satisfied on reasonable grounds that the State or Territory prison can meet the ‘appropriate treatment’ obligation in subsection 105A.4(1).
5.60
Ms Pauline Wright, President of the Law Council of Australia, said that there is a lack of information regarding the arrangements for those who would be potentially subject to a CDO:
We have no information about the status and details of arrangements made between the Commonwealth, states and territories for accommodating people subject to these orders and arrangements for independent oversight, nor have we been able to locate any details of rehabilitation programs in place for people in post-sentence detention and the costings for the operation of the regime.
5.61
The Department of Home Affairs said that they were working with the Victorian Department of Justice to finalise a housing agreement for HRTO-eligible offenders:
Facilities are available in Victoria and an agreement was signed by the Commonwealth and Victoria in September 2020 to support a continuing detention order application made in the Supreme Court of Victoria.
The Commonwealth is working with the Victorian Department of Justice and Community Safety to finalise an enduring housing agreement that governs housing for all HRTO-eligible offenders subject to a continuing detention order in the state of Victoria.
5.62
The Department of Home Affairs said that there were 12 offenders with custodial sentences that were due to conclude between 2020 and 2025. Of those listed, 10 were located in NSW. The remaining two were located in Victoria.
5.63
The Attorney-General’s Department, the Department of Home Affairs and the AFP did not provide any evidence regarding housing arrangements in progress in NSW for HRTO-eligible offenders.
5.64
The High Court of Australia said in the Benbrika Decision that a CDO is protective and not punitive, and that the treatment of a person subject to a CDO should reflect this:
…the fact that the detention for which Div 105A provides is in a prison detract from the conclusion that its purpose is protective and not punitive. That protection is its purpose is reinforced by the requirement that a person detained under a continuing detention order, as far as reasonably possible, is to be treated in a way that is appropriate to his or her status as a person who is not serving a sentence of imprisonment. Such a detainee is not to be accommodated in the same area of the prison as prisoners serving sentences of imprisonment unless that is necessary, or unless the person elects to be so accommodated. A detainee under a continuing detention order is not denied access to such treatment and rehabilitation programs as may be available in the prison. The absence of special provision for treatment and rehabilitation of detainees under Div 105A does not deprive the scheme of its character as protective.
Transparency and reporting
5.65
The current reporting requirements for CDOs are provided by subsection 105A.22 and mainly apply to the AFP Minister. The Minister must, after each 30 June, provide a report to parliament which outlines the following:
applications for CDOs made during the year;
applications for interim detention orders (IDOs) made during the year;
CDOs made during the year;
IDOs made during the year;
applications for review of CDOs affirmed during the year;
CDOs varied during the year; and
CDOs revoked during the year.
5.66
This report must be provided to the Parliament within 15 sitting days of the report being completed.
5.67
The Law Council said that there should be more transparency and reporting surrounding the implementation of the CDO regime:
In the interests of transparency in the implementation of this relatively new and highly intrusive regime, the Law Council considers that there should be statutory periodic reporting requirements on the implementation of the regime, which go beyond the statistical annual reporting requirements in section 105A.22 on the numbers of CDOs and applications.
Extended supervision orders
5.68
The Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2020 proposed the introduction of an extended supervision order (ESO) regime. Though the provisions of the Bill are not part of this statutory review, the introduction of an ESO scheme will directly impact both CDOs and control orders, and a number of submitters raised the topic of ESOs in the course of this inquiry.
5.69
The introduction of the ESO regime would address issues of interoperability outlined by the Committee in its consideration of the CDO scheme and by the former INSLM in his 2018 review of Divisions 104 and Division 105 of the Criminal Code.
5.70
As currently enacted, the CDO scheme required the Court to consider whether other less intrusive measures would appropriately address the risk to the community of a terrorist offender committing a serious terrorism offence. An example of a less intrusive measure included control orders. The Department of Home Affairs, the Attorney-General’s Department and the AFP said that the ESO scheme is designed to provide a less restrictive alternative to CDOs:
ESOs have been specifically designed to target a narrower cohort of individuals compared to those to whom the control order scheme is intended to apply. ESOs will form part of the High Risk Terrorist Offenders (HRTO) regime established under Division 105A of the Criminal Code, and will provide a less restrictive alternative to CDOs to manage the unacceptable risk posed by eligible offenders post-sentence.
5.71
The AHRC said they supported the introduction of an ESO regime that reflected the recommendation put forward by the former INSLM, Dr Renwick:
Finally, as noted above, there are a range of important outstanding recommendations from the third INSLM and the PJCIS in relation to the establishment of an extended supervision order (ESO) regime. This would allow a court considering an application for a CDO to consider whether an ESO would be an effective and less restrictive alternative and, if so, to make an ESO instead. The Commission submits that the ESO regime in this form could replace the existing control order regime on the basis that it has a better focus on risk and is more consistent with human rights.
5.72
The Law Council said it supported the establishment of an ESO regime in principle ‘as a less restrictive alternative to continuing detention orders that can be issued by a state or territory Supreme Court.’ At a public hearing, Dr David Neal of the Law Council said that an ESO regime would strike a better balance between human rights concerns and national security matters than the current control order or CDO regimes.
5.73
The provisions of the Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2020 is considered further in the report of the Committee’s concurrent inquiry, Advisory Report on the Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2020.
Committee Comment
5.74
The Committee notes that the release of terrorist offenders may pose a potential risk to the Australian community of further serious terrorism offences, and that the CDO scheme is part of a multifaceted system designed to address and ameliorate the threat.
5.75
The Committee notes the views of both government and community submitters that the CDO scheme is a legitimate and proportionate means of ensuring the safety of the Australian community.
5.76
The Committee also notes the High Court’s recent decision in the case of Minister for Home Affairs v Benbrika. In light of the case, and noting the list of offenders to be released in the next five years who would be eligible for consideration under the HRTO scheme, the Committee believes that CDOs continue to be necessary within the Australian response to terrorism.
5.77
The Committee notes that as the terrorism threat evolves and Commonwealth, State and Territory police forces find new ways to address these threats, schemes like CDOs may become less relevant. The Committee also notes that the establishment of an ESO scheme may have an impact on the utility of the CDO scheme.
5.78
The Committee considers that there would be a benefit in having the opportunity to review the provisions prior to their sunset to evaluate the impact of the ESO scheme and take into account the outcome of the first use of the scheme since its inception. The Committee recommends that the Intelligence Services Act 2001 be amended to provide for the Committee to undertake a review of Division 105A prior to the sunset of the provisions in December 2026. The Committee may concurrently conduct a review of Division 105A with reviews of other provisions as recommended in this report.
5.79
The Committee recommends that section 29 of the Intelligence Services Act 2001 be amended to provide that the Committee may conduct a further review into the operation, effectiveness and implications of the continuing detention order regime in Division 105A of the Criminal Code Act 1995 prior to the sunset date.
5.80
The Committee notes that the continued detention of a subject following the conclusion of a custodial sentence has an impact on the human rights of an individual. The Committee however, also recognises that the human rights implicated by the provisions are subject to legitimate limitation to keep the Australian community safe.
5.81
The Committee notes that the continued detention of an individual is, by nature, protective rather than punitive. The Committee notes the evidence of the Department of Home Affairs that arrangements are being made in Victoria to address the continuing detention requirements of offenders due for release from custodial sentences who would be eligible for application under the HRTO scheme.
5.82
Noting that there are a number of terrorist offenders identified by the Department of Home Affairs as eligible for consideration under the HRTO scheme, the Committee considers that the Department should ensure appropriate coordination with State and Territory departments to facilitate similar consideration of appropriate detention facilities.
5.83
The Committee recommends that Department of Home Affairs source appropriate agreements within all states and territories, to ensure appropriate accommodation those who are subject to interim and confirmed CDOs.
5.84
The Committee recommends that the Department of Home Affairs coordinates with relevant State and Territory Departments to source appropriate accommodations to facilitate interim and confirmed continuing detention orders. The Committee recommends coordination with New South Wales on appropriate accommodation should start as soon as possible, noting the number of eligible offenders due to be released in the next five years.
5.85
The Committee notes the evidence of the Department of Home Affairs, the Attorney-General’s Department and the AFP that the increase in terrorist offenders coming to the conclusion of their custodial sentence means that the number of CDO applications is likely to rise.
5.86
The Committee notes the concerns of submitters regarding the intrusiveness of such powers, and considers that the use of such powers should incorporate commensurate transparency and reporting requirements. Therefore, the Committee recommends that additional reporting requirements be incorporated into the AFP Minister’s annual report, including data on the accommodation of those subject to a CDO, information about rehabilitation programs used as part of the CDO scheme, and information about resourcing – including those used for rehabilitation, legal assistance, and costs associated with enforcement.
5.87
The Committee recommends that the Criminal Code Act 1995 be amended to require public reporting requirements on the use and implementation of Division 105A, including:
details of housing arrangements for individuals subject to a continuing detention order;
use of rehabilitation programs (pre and post-release); and
use of resources; including rehabilitation program costs, legal assistance costs, and costs associated with enforcement.
5.88
The Committee notes the evidence received regarding the use of assessment tools to provide an indication of future risk associated with a terrorist offenders. The Committee notes that several submitters indicated there were limitations in the use of such tools to predict the risk of terrorist offences for an offender.
5.89
The Committee notes the evidence of the Department of Home Affairs regarding the determination of the VERA-2R assessment tool as the most appropriate tool to assess the risk of those convicted of terrorism offences. The Committee acknowledges the contributions of Dr Elaine Pressman to the Committee’s consideration of the appropriateness of the VERA-2R assessment tool.
5.90
The Committee was not entirely convinced on the basis of the evidence provided to the inquiry that the VERA-2R tool is the most appropriate tool to determine the level of risk posed by a convicted terrorist offender. The Committee recommended in its Advisory Report on the Review of the Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2020 that an independent review of VERA-2R and alternatives be undertaken, with findings report to the Parliament.
Senator James Paterson
Chair
12 October 2021