This chapter discusses the legislative history of post-sentence orders (PSOs) – including continuing detention orders (CDOs), preventative detention orders (PDOs), and control orders (COs) – and the deliberation leading to the development of a Commonwealth-level extended supervision order (ESO) scheme.
The current security environment
In 2014 Australia’s National Terrorism Threat Level was raised to PROBABLE which indicated that there was credible intelligence that supported an intention and capability to conduct a terrorist attack in Australia.
The Australian Security Intelligence Organisation (ASIO) said in its recent annual report that Islamic extremists continued to disseminate propaganda to encourage terrorist attacks, including in Australia:
Islamic extremists continue to disseminate propaganda designed to radicalise, recruit, instruct on and inspire terrorist attacks, including in Australia. Australia continues to be specifically mentioned in pro–Islamic State of Iraq and the Levant (ISIL) propaganda, and these releases add to a large body of material that encourages terrorism. This propaganda is drawing a younger audience which accesses this material online, and its potential reach increased in 2020 as COVID-19 social isolation increasingly pushed Australians online. Al-Qa‘ida remains active, particularly offshore; although in the next five years Australian prisons are due to release a number of Islamic extremist prisoners whose actions were inspired by al-Qa‘ida.
In its submission to the Committee’s concurrent review into Australian Federal Police (AFP) powers, the AFP said that the terrorism environment has increased in complexity:
Since the Committee’s 2017 inquiry into AFP Powers, the terrorism environment continues to increase in complexity. While the National Threat Level has remained at PROBABLE, ongoing challenges to law enforcement include the demise of the IS territorial caliphate and the need to investigate and prepare for the possible return of foreign fighters; continued investigations into domestic attack planning; the aftermath of the March 2019 Christchurch attack - the first mass-casualty terrorist attack by an Australian right-wing terrorist; the increased threat of right-wing terrorism; the role of technology in propagating violent extremist ideologies; and the heightened need to address the reintegration and continuing risks associated with the release of convicted high risk terrorist offenders completing their head sentence.
Recent operational experience indicates an emerging trend of extremists exploiting the public fear associated with the COVID-19 pandemic to target certain racial and ethnic groups. These groups seek to spread disinformation, incite violence, intimidate targets, promote their ideology and recruit new members. They continue to seek to take advantage of increased isolation, unemployment, family stress and financial hardships to recruit individuals vulnerable to online radicalisation.
The AFP also said that Australian law enforcement agencies have responded to the complex threat environment in disrupting planned terror events and pursued the prosecution of individuals involved in terrorism activities:
Since the elevation of the National Terrorism Threat Level to PROBABLE in 2014, Australian law enforcement have responded to a diverse range of terrorist threats and 110 individuals have been charged as a result of 51 counter terrorism related investigations. There have been seven domestic attacks and 18 major counter terrorism disruption operations in relation to potential or imminent attack planning within Australia, with two of those disruptions relating to individuals alleged to support extreme right wing ideology.
The Attorney-General’s Department and the Department of Home Affairs said that the evolving nature of the terrorism threat encompassed released offenders:
The evolving nature of the terrorism threat now includes a specific risk posed by released offenders, who can be highly radicalised, motivated and capable of engaging in further offending (or inspiring others to do so).
The Attorney-General’s Department and the Department of Home Affairs said that 86 individuals have been convicted of Commonwealth terrorism offences, and of those convicted of these offences, 13 offenders are due to be released by 2025:
As at 19 October 2020, 86 individuals have been convicted of and sentenced for Commonwealth terrorism offences, and a further 20 people are currently before the courts. Of those individuals convicted of a terrorism offence, 46 were sentenced in the last three years. There are 13 offenders due to be released into the Australian community following the expiry of their custodial sentences between now and 2025.
The Explanatory Memorandum said that extended supervision orders will strengthen Australia’s counter-terrorism framework:
In the current security environment, having a range of tools to combat the evolving nature of the threat posed by terrorism is vital. Experience overseas has demonstrated the continuing threat posed by extremists, including those who have served sentences for terrorism offences. The 2019 London Bridge attack and 2020 Streatham attacks in the UK were carried out by convicted terrorist offenders, highlighting the continued need for effective prevention and risk management measures to protect the community. ESOs will further strengthen Australia’s counter-terrorism framework by enabling State and Territory Supreme Courts to impose a range of conditions on an offender to mitigate the risk they pose to the community.
Previous inquiries by the Committee
The powers proposed by the Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2020 form part of a suite of powers that have existed, in-principle, since 2005; although the powers have been amended and additional provisions have been included in the years following their introduction.
The Committee has undertaken reviews of these powers on several occasions since 2013, including a current review of the powers. A summary of other Committee inquiries related to AFP’s counter-terrorism powers can be found in the Committee’s concurrent inquiry report, Review of police powers in relation to terrorism, the control order regime, the preventative detention order regime and the continuing detention order regime.
The Committee has conducted two recent inquiries – one in 2016 and one in 2018 – that are relevant to the proposed introduction of an extended supervision order scheme.
Advisory Report on the Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016
In 2016 the Committee considered the Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016 that sought to introduce a new Division 105A into the Criminal Code Act 1995 (‘Criminal Code’), and to make consequential amendments to the Surveillance Devices Act 2004 and the Telecommunications (Interception and Access) Act 1979.
The new Division 105A of the Criminal Code introduced the continuing detention order (CDO) regime, which may commit an offender to a period of detention following a period of imprisonment where a Court determines that a terrorist offender poses an unacceptable risk of the commission of a serious offence if released into the community.
While the Committee made 23 recommendations to enhance the integrity and safeguards of the scheme and to improve the effectiveness of the scheme, the Committee concluded that a scheme providing for post-sentence detention of terrorist offenders where the threshold of an unacceptable risk to the community had been met would form an appropriate part of a ‘multifaceted’ response to the threat of terrorism.
The Attorney-General and the Attorney-General’s Department provided evidence that where the threshold for a CDO was not met, a control order would not be able to be made. The Attorney-General’s Department suggested that the Committee and the Independent National Security Legislation Monitor (INSLM) may have considered recommending an amendment to the Criminal Code to allow a control order to be issued when the threshold for a CDO is not met, or that the INSLM and the Committee may have considered recommending the introduction of an extended supervision order regime.
The ongoing effectiveness of CDOs are considered further in the Committee’s concurrent inquiry, Review of police powers in relation to terrorism, the control order regime, the preventative detention order regime and the continuing detention order regime.
Review of police stop, search and seizure powers, the control order regime and the preventative detention order regime
In 2018 the Committee reviewed the following AFP powers:
the stop, search and seizure powers provided for under Division 3A of Part IAA of the Crimes Act 1914;
the control order (CO) regime provided for under Division 104 of the Criminal Code Act 1995; and
the preventative detention order (PDO) regime provided for under Division 105 of the Criminal Code Act 1995.
At the time of the review, the Committee noted that the AFP had obtained six control orders since the introduction of the regime, and that at the time of the report, the powers provided by Divisions 3A of Part IAA of the Crimes Act 1914 and Division 105 of the Criminal Code Act 1995 had not been used.
In its review, the Committee said that the control order powers were being used appropriately but said that operational issues may have prevented more extensive use of the powers. As a consequence, the Committee made four recommendations designed to address operational issues and reduce the complexity of interim control orders and control order proceedings.
The Committee noted the findings of former INSLM, Dr James Renwick CSC SC, in the 2017 review of Division 104 and 105 of the Criminal Code Act 1995 which examined, among other aspects, the interoperability of control orders and continuing detention orders, discussed further below.
The Committee said that it supported an extended supervision order scheme, as set out by the former INSLM, to address operational aspects of control orders and CDOs:
[ESOs would] provide a court with a less restrictive option that has similar controls and monitoring provisions to the control order regime, but with thresholds and procedural arrangements in line with the continuing detention order regime. The INSLM’s recommendation would therefore enable a State or Territory Supreme Court to consider a range of restrictions on a person who continues to pose an unacceptable risk to the community, with the (shorter duration) control order regime continuing to operate separately through the Federal Court. The Committee therefore supports the model recommended by the INSLM, noting that it appears to have broad support from stakeholders.
Though the Committee noted that the ‘stop, search and seizure powers’ in Division 3A of Part IAA of the Crimes Act 1914 had not been used, the Committee considered that even though the rare and exceptional circumstances required to use of the ‘stop, search and seizure powers’ had not yet arisen it did not necessarily mean that the powers should be discontinued.
In its consideration of the preventative detention orders regime, the Committee noted the extraordinary nature of the powers, and considered the disparate views of the former INSLM and the AFP with non-government submitters on the continued utility and appropriateness of the powers. The Committee considered that while the powers were introduced as a means to address large-scale organised terrorist attacks – identified in the report as the most prominent terrorism threat at the time the powers were initially introduced in 2005 – the Committee had received evidence that the emergence of the threat of smaller scale terrorist operations did not diminish the potential utility of the powers in the appropriate circumstances. The Committee recommended that the PDO powers continue for a further three years.
The ongoing effectiveness of the ‘stop, search and seizure powers’, the control order regime and the PDO regime are considered further in the Committee’s concurrent inquiry, Review of police powers in relation to terrorism, the control order regime, the preventative detention order regime and the continuing detention order regime.
INSLM review of Divisions 104 and 105 of the Criminal Code Act 1995
The Independent National Security Legislation Monitor Act 2010 (‘INSLM Act’) required the former INSLM, Dr James Renwick CSC SC, to consider and report by September 2017 on whether the control order and PDO provisions of the Criminal Code:
contained appropriate safeguards to protect the rights of individuals; and
remained appropriate to any threat of terrorism or threat to national security, or both; and
Though the former INSLM was not required to consider the CDO scheme as part of the review, following the input of the Committee, the Attorney-General and the Attorney-General’s Department, the former INSLM considered the interoperability between the control order scheme and CDOs.
The former INSLM said that most states had post-sentence controls in place for sex offenders, and also for violent offenders in New South Wales (NSW) and South Australia (SA). In contrast with Commonwealth provisions, the construction of powers in States with both CDOs and ESOs allow for the Court to make an ESO where it would provide an adequate safeguard against potential risk:
A common feature of all of the state high-risk offender legislation is the availability, under the various Acts, of orders for continuing detention or conditional release: in other words the court may continue detention, permit release on conditions, or release unconditionally. Some of the legislative regimes require, as a condition of making a CDO, that the court is satisfied that adequate supervision will not be provided under an ESO.
The former INSLM recommended that an ESO regime be introduced to allow state and territory supreme courts to make either a CDO or an ESO for a period of up to three years at a time, on application by the Attorney-General of Australia, where the court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious Part 5.3 offence.
In addition the former INSLM recommended that the court be required to only make a CDO where satisfied that an ESO would not prevent the identified risk.
The former INSLM made five additional recommendations regarding the implementation of the scheme:
the Commonwealth Attorney-General also be the applicant for an ESO
there be no new pre-conditions before the Attorney-General commences div 105A proceedings for an ESO
an application may be made for an ESO in relation to a person who is already the subject of a CDO or ESO
the same controls and monitoring regime be available for an ESO made under div 105A as a control order made under div 104
the government consider making the special advocates regime available for applications under div 105A.
The former INSLM said that the introduction of an ESO regime should not impact the grounds on which a control order could be made, however, the former INSLM did make a number of additional recommendations to clarify the scope a control order while an application for a CDO or ESO was underway.
The Committee notes the evolving nature of the threat of terrorism, and continues to support the AFP having the necessary tools to disrupt the activities of those who would seek to harm the Australian community.
The Committee notes the limitations of current powers under the Crimes Act 1914 and the Criminal Code Act 1995 that have impact the AFP’s ability to utilise continuing detention orders to address the threat to the Australian community from convicted terrorist offenders at the conclusion of their sentence.
The Committee also notes that the operational effectiveness and appropriateness of the current suite of AFP counter-terrorism powers are considered further in the Committee’s concurrent review of police powers in relation to terrorism, the control order regime, the preventative detention order regime and the continuing detention order regime.