Advisory Report on the Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016 (Cth) Delivered
Friday 18 November 2016 @ 12.19 p.m. | Crime | Legal Research
The Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016 (the Bill) was introduced into the Federal Senate on 15 September 2016. As part of its introduction, Senator the Hon George Brandis QC, asked the Parliamentary Joint Committee on Intelligence and Security (the Committee) to inquire into and report on the Bill. The final report was tabled on 4 November 2016.
Background to the Bill
As mentioned in our previous article, the Bill will amend Chapter 5 Part 5.3 of the Criminal Code (Cth) (The Schedule to the Criminal Code Act 1995 (Cth) to establish a scheme for the continuing detention of ". . . high risk terrorist offenders who pose an unacceptable risk to the community at the conclusion of their custodial sentence".
The new regime created by the proposed amendments will enable a State Supreme Court, upon application by the Attorney-General, to make an order for the ongoing detention of high risk terrorist offenders who are approaching the end of their custodial sentences and are about to be released into the community. In granting the order, the court must be satisfied: ". . . to a high degree of probability, on the basis of admissible evidence, that the offender poses an unacceptably high risk of committing a serious terrorism offence if released".
In referring the Bill, the Attorney-General noted that, on 11 December 2015, the Council of Australian Governments (COAG) agreed 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. The Legal Issues Working Group of the ANZCTC developed possible features of a proposed regime, and on 1 April 2016, COAG agreed in principle for the Commonwealth to lead the process of developing a post-sentence preventative detention regime that could apply uniformly across all jurisdictions. On 5 August 2016, the Attorney-General convened a meeting of all State and Territory Attorneys-General to consider the proposed scheme and ensure legislation could be introduced quickly. All Attorneys-General agreed in principle to a draft of the Bill. All States subsequently agreed to the text of the Bill in accordance with the Inter-Governmental Agreement on Counter-Terrorism Laws.
Findings of the Committee and Report
The Attorney-General, in his referral of the Bill to the Committee suggested that detailed consideration of how the existing control order regime might better interact with the proposed continuing detention order regime could be deferred for consideration by the reviews of the control order regime by the Independent National Security Legislation Monitor (INSLM) and the Committee in 2017 and 2018 respectively. In further correspondence dated 13 October 2016, however, the Attorney-General suggested that the Committee may wish to consider in the current inquiry the timing of control order applications.
In its report, the Committee recommended the laws be introduced along with 24 listed recommendations including changes to:
- Applications for extensions to 12 months rather than the originally proposed 6 months;
- The exclusion of officers convicted of treason and those publishing recruitment material; and
- A 10-year sunset clause with mandatory reviews.
Ironically, the Committee has also recommended that the Attorney-General get advice from the Solicitor-General as to the final form of the Bill before its enactment, which will be difficult as the position is yet to be filled after Justin Gleeson resigned earlier this month.
In a statement, the Committee Chair, Mr Sukkar said the changes would strengthen Australia's counter-terrorism framework:
"Where a terrorist offender continues to present an unacceptable risk to the community, it is appropriate that — subject to strict safeguards and oversight — a court be able to issue an order for that offender to be detained beyond the end of their sentence."
Civil liberties groups, however, expressed concern about the proposed laws earlier this year claiming they were a distraction and window-dressing:
"People who have been convicted of serious terrorism offences are in jail for many years to come, we're not being told who is about to be released that they're concerned about."
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Sources:
Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016 and Counter-Terrorism Legislation Amendment Bill (No. 1) 2016 and explanatory material as reported in the TimeBase LawOne Service
