National Security Law Monitor Calls for the Abolition of Continuing Detention Orders

Post-sentence order regimes are playing an increasing role in criminal justice systems across Australia. These frameworks permit further restrictions to be applied to an offender, usually classed as high-risk or a person convicted of a terrorism offence, after their court-imposed sentence has expired.

Two forms of post-sentence orders exist. Continuing detention orders (CDOs) require inmates who’s prison term is about to end being kept inside for a longer period, while extended supervision orders (ESO) permit a subject to live in the community under conditions that restrict their liberty.

“Australia leads the world in making laws “ of this type, outlines Independent National Security Legislation Monitor (INSLM) Grant Donaldson SC, in his recently released report pertaining to Division 105A of the Criminal Code Act 2005 (Cth) (the Code).

Established in 2016, Division 105A contains a regime capturing “high risk terrorist offenders” at the federal level, which empowers the Supreme Court of any state or territory to impose such orders upon convicted terrorists who’ve served their time, yet pose an “unacceptable risk”.

And in having reviewed the federal post-sentence order regime, Donaldson considers CDOs should be abolished, as not only is there a lack of circumstances necessitating them, but the requirement that judges make predictions about future behaviour risks unjust decisions being made.

The post-sentence regime

Turnbull government attorney general George Brandis drafted the Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016, which served to insert the continuing detention order regime into federal criminal law.

These measures apply to “serious Part 5.3 offences” – which include terrorist acts, crimes related to terrorist organisations and the financing of terrorism – that carry a maximum penalty of at least 7 years imprisonment.

A CDO permits the attorney general to apply for a terrorist offender to be kept inside for up to three years after the expiration of their sentence, and a court must then determine whether the order be issued based on expert submissions.

Indeed, section 105A.7(6) of the Code confirms that there is no limit to the amount of CDOs that can be applied to one individual, as a further order can be imposed as a current one is set to expire, which is a measure that clearly opens a path to indefinite detention.

And it was under AG Michaelia Cash that the Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2021 passed parliament, which inserted the framework establishing extended supervision orders into Division 105A of the Code.

“ESOs would present a less restrictive measure to manage the risk posed by an offender, where a court is not satisfied that continued detention is necessary to prevent that risk,” the bill’s explanatory memorandum sets out.

ESOs act in a similar manner to parole, except the restrictions imposed on the subject whilst they are living in the community are enforced after the term of their actual prison sentence, which is the timeframe within which parole is usually applied.

Similar to CDOs, ESOs are considered by a court, can be applied for a period of up to three years, while there is no limit to the number of subsequent orders that can be sought and then imposed. And the division lists the prohibitions, restrictions and obligations that can be applied to an ESO.

A brief history of continuing detention

The state of Queensland developed the Australian taste for continuing to detain certain convicted criminals after their sentences have expired. And it did so with the passing of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld).

Today, all states and the NT have their own post-sentence regimes operating. All seven jurisdictions have them in place for sexual offenders. NSW, SA, Victoria, WA and Tasmania all operate schemes that capture violent offenders, while NSW and SA have their own laws relating to terrorist offenders.

The Australian Capital Territory is the only jurisdiction in this country not to have established such a regime.

In NSW, CDOs are applied to serious violent or sexual offenders under the Crimes (High Risk Offenders) Act 2006 (NSW), whilst those who’ve been convicted of serious terrorism crimes can be subjected to extended detention under the Terrorism (High Risk Offenders) Act 2017 (NSW).

As the INSLM notes, since 2001, there have been 102 terrorism-related convictions in Australia, many of which involved overseas incidents that don’t constitute Part 5.3 offences, while only seven individuals have ever been convicted of a terrorist act.

Donaldson then points out that the United Kingdom has a long list of major terrorist incidents that have occurred, whilst New Zealand suffered the Christchurch mosque massacre, yet neither of these countries have moved to establish a mechanism to permit detention after a sentence expires.

And while the United States and Canada have neither established such regimes, the INSLM suggests this might be expected as both nations have strong federal rights protections in place.

“Australia is an outlier in having a CDO mechanism as a response to the risk of terrorism,” Donaldson underscores.

Abolish the CDO

In 2021’s Minister for Home Affairs versus Benbrika, the majority of the High Court found that the CDO regime set out in Division 105A was not in breach of Chapter III of the Australian Constitution, as the type of detention involved is not necessarily punishment, as it’s rather preventative in nature.

For his part, the INSLM opens his law review by stating that “only one Australian parliament, and a mere handful of Australian parliamentarians, have resisted these laws”, which have “made us a coarser and harsher society”, and there’s no one to consult as to whether it’s made us any safer.

In terms of ESOs, Donaldson recommends that they’re overhauled so that these measures, which were a recommendation of a previous INSLM office bearer, have a focus on rehabilitating and reintegrating the subject whilst they’re living in the community under supervision.

But when it comes to CDOs, Donaldson is quite clear in his recommendation that all powers to detain Part 5.3 terrorist offenders past the expiration of their sentences be completely revoked, as they are disproportionate in reach and unnecessary in the Australian setting.

“Detention in a prison is too profound a thing to be determined by prediction about the future based on this risk assessment process,” the INSLM makes clear.

Donaldson added that ESOs would still be in place, as well as federal preventative detention orders, which allow for the detaining of those posing a terrorist threat for the period of up to 14 days.

“A preventative detention order responds to an imminent threat of a terrorist act and, even though no preventive detention order has ever been sought, it is available in the face of a clear and immediate threat of a terrorist act,” the legislative monitor assured.