This chapter discusses the amendments to continuing detention orders (CDO) and control orders arising out of the Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2020 (‘the Bill’). This chapter also considers the proposal to amend the Bill to cover additional matters.
Amendments to continuing detention orders and control orders
The Bill proposes additional amendments to the CDO scheme and control orders scheme separate to the introduction of the extended supervision order (ESO) scheme. Further discussion on the provisions as related to the introduction of the ESO scheme is contained in Chapter 3, and the schemes will be considered more fully as part of 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.
Continuing detention orders
Division 105A of the Criminal Code Act 1995 provides that the AFP Minister may apply to a State or Territory Supreme Court for a CDO where an individual is:
serving a custodial sentence for a specified terrorism offence;
detained in custody as a result of a CDO or interim detention order (IDO) that is in force; or
serving a custodial sentence for an offence other than a specified terrorism offence but has been continuously detained in custody since being convicted of a terrorism offence or since a CDO or IDO was in force in relation to the offender.
The Attorney-General’s Department and Department of Home Affairs outlined the circumstances in which a CDO can be sought:
Orders can only be sought for persons who are at least 18 years of age when their sentence of imprisonment for an eligible offence ends. Section 105A.7 provides that the Court may impose a CDO for up to three years if 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. The Court cannot make a CDO if a less restrictive measure, for example a control order, would be effective in preventing the unacceptable risk. However, a Supreme Court cannot make a control order as a less restrictive alternative to a CDO – only the Federal Court of Australia or the Federal Circuit Court of Australia can make such an order.
The Bill proposes to enable an offender who has been charged with an offence for contravening a condition of a extended supervision order (ESO) or control order be potentially subject to a CDO where the Court is satisfied that, as a result of the breach, the offender poses an unacceptable risk of committing a serious terrorism offence.
The Law Council of Australia said that this provision could create prolonged periods of imprisonment for minor infractions. The Law Council noted that ‘prolonged imprisonment also raises a further risk that the person may be exposed to radicalisation and new forms of criminal activity while serving a sentence of imprisonment for breaching an ESO’.
The control order scheme is outlined by Division 104 of the Criminal Code Act 1995 which allows the Federal Court of Australia, or the Federal Circuit Court of Australia, to make a control order – or interim control order – where it is satisfied on the balance of probabilities that the order would substantially assist in preventing a terrorist act or in preventing support for a terrorist attack. The Court must be satisfied that the person has undertaken activities that would contribute to the risk of a terrorist act.
Where the Court is satisfied of these matters it may impose certain obligations, prohibitions or restrictions from a prescribed list that the Court is satisfied is reasonably necessary, appropriate and adapted for the protective purpose of the order.
The Law Council of Australia said the Bill proposes to expand the conditions that may be imposed by a control order to provide:
a requirement that the person carries, at all times, a specified mobile phone, and is available to answer calls from a ‘specified authority’ or return such calls promptly;
additional, mandatory obligations on a person who is required to wear an electronic monitoring device, which a court has no discretion to dispense with or modify, including:
the above requirement to carry at all times, a specified mobile phone, and answer or return promptly calls from a ‘specified authority’;
a requirement to allow a ‘specified authority’ (being any person specified in the CO, not limited to police) to enter the controlee’s house at any time, for any purpose ‘relating to the electronic monitoring of the person’; and
detailed obligations in relation to the maintenance of the monitoring device, as specified in the individual CO (with no statutory parameters on the conditions that may be specified).
The Explanatory Memorandum provides that the electronic monitoring conditions have been expanded in the Bill for control orders to align them with the proposed ESO scheme.
The Law Council of Australia recommended that both expansions of conditions be omitted from the Bill, or as a non-preferred alternative, additional protections should be incorporated which would provide the Court with a higher degree of discretion in how to apply the conditions.
The Bill proposes to repeal certain subsections of the Criminal Code Act 1995 (‘Criminal Code’) that provided that a court need not include an obligation, prohibition or restriction in an interim control order, or when confirming a control order, that the Court is not satisfied meets the relevant purpose of the order and is therefore unnecessary. The Explanatory Memorandum said that the continued inclusion of these clauses is unnecessary because the Court has a positive obligation to ensure that the conditions are reasonably necessary prior to including them in an interim control order or when confirming a control order.
The Australian Human Rights Commission (AHRC) recommended that the sections not be repealed because they exist for ‘the avoidance of doubt and that they provide a benefit to respondents to control order proceedings’.
Proposal to amend the Bill
In May 2021, the Attorney-General’s Department and the Department of Home Affairs provided a supplementary submission to the inquiry to inform the Committee about proposed amendments to the Bill the Government was intending to progress. The proposed amendments would impact on control orders, continuing detention orders and the proposed extended supervision orders.
The exposure draft of the proposed Government amendments was provided in August 2021, with an accompanying supplementary submission and table clarifying the effect of the amendments in relation to immigration detention.
The proposed amendments seek to address ‘potential issues which may arise in the practical application of Part 5.3 orders’ (CDOs, ESOs and control orders). The proposed amendments ‘would clarify how Part 5.3 orders operate, including where a person is, or becomes, an unlawful non-citizen, and is subject to immigration detention’.
The Attorney-General’s Department and Department of Home Affairs said:
As outlined in the May submission, these amendments would clarify the operation of extended supervision orders (ESO) and control orders in immigration detention by ensuring that such orders can commence where a person is in immigration detention, and that the conditions of these orders would remain enforceable against an offender who is in immigration detention.
Proposed new amendments were also included in response to issues raised by the AHRC and Law Council of Australia.
Provisions relating to immigration detention
The first amendment proposed would allow a control order or extended supervision order to commence and be enforced while a person is in immigration detention. The Attorney-General’s Department and the Department of Home Affairs said the amendment was appropriate because immigration detention facilities are less restrictive:
Immigration detention is different in nature to other forms of custody. Immigration detention is administrative rather than punitive in purpose. Practically, immigration detention facilities are less restrictive than prison facilities and will, for example, afford a person access to individuals and technology, which could be inconsistent with the conditions of a particular ESO or control order.
Current control order provisions preclude an interim control order from commencing until the individual is released from custody, while the proposed extended supervision order regime suspends an order while an individual is detained in custody. The Attorney-General’s Department and the Department of Home Affairs said that the proposed amendments would ensure the purpose of the regimes would not be undermined:
Accordingly, the Government proposes to amend the Bill to clarify that control orders and ESOs can commence where an individual is in immigration detention and prevent ESOs from being suspended where the offender is transferred to immigration detention.
This would ensure that the purpose and operability of ESOs and control orders would not be undermined. Without amendment, there is an unintended and foreseeable gap in the ability of law enforcement to manage persons who pose a terrorism risk and ensure the safety and protection of the community from terrorism activity. Such a gap would be inconsistent with the intended purpose and role of Part 5.3 orders within the Commonwealth’s counter-terrorism framework.
The Australian Human Rights Commission (AHRC) was not opposed to such clarification, but recommended that the applicant for the order be required to notify the Court if an order is anticipated to commence while an individual is subject to immigration detention. The AHRC said that this would allow the Court to consider whether the restrictions imposed as part of immigration detention would be sufficient to address the unacceptable risk to the community and also to allow the Court to impose conditions that can be complied with in immigration detention.
The Law Council of Australia said that it was not persuaded that the amendments put forward by the Attorney-General’s Department and the Department of Home Affairs would provide additional protections above those in the Migration Act 1958. The Law Council recommended that the amendments exclude control orders and apply only to ESOs where a person had been ‘determined by a court to be a ‘high-risk terrorist offender’ under Division 105A of the Criminal Code and is the subject of an ESO issued under that Division’.
The Law Council of Australia also said that the potential amendments should include additional safeguards in relation to appropriate access to assistance and information relevant to the post-sentence order – including access to legal assistance, independent risk assessment services, and all relevant information concerning applications for renewal or variation of the order– as well as additional safeguards in relation to potential offences for breaching a post-sentence order while in immigration detention.
A new definition of ‘detained in custody’ was put forward in the proposed amendments, and two sub-definitions to cover the terms ‘detained in custody in prison’ and ‘detained in non-prison custody’. The amendments defining these matters are designed to ‘provide clarity around the applicability of each of the relevant provisions to different types of detention’. The table included in Supplementary Submission 5.4 sets out the application of the proposed amendments to relevant provisions in the Criminal Code.
The proposed new definitions are:
(3A) A person is detained in custody if the person is detained in custody under a law of the Commonwealth, a State or a Territory.
(3B) A person is detained in custody in a prison if the person is detained in custody in a gaol, lock-up or remand centre, including under a continuing detention order or interim detention order. However, a person is not detained in custody in a prison if the person is in immigration detention in a gaol, lock-up or remand centre.
(3C) A person is detained in non-prison custody if the person is detained in custody, but is not detained in custody in a prison.
The Attorney-General’s Department and Department of Home Affairs said that the new definition would provide ‘flexibility’ for ESOs and control orders to apply in ‘non-prison’ detention, and gave the example of a person subject to quarantine under the Biosecurity Act 2015.
The concerns of the Law Council of Australia were addressed, with the Attorney-General’s Department and Department of Home Affairs reiterating that immigration detention is administrative rather than punitive, and that the proposed new amendments would allow an ESO or control order to remain in force in different types of immigration detention:
…due to the administrative nature of immigration detention, detention can take place in various locations. While an immigration detention centre may typically be where a person subject to an ESO or control order is housed, there may be circumstances where it is appropriate for that person to be in an alternative place of detention or community detention. It is imperative that the conditions of an ESO or control order remain in force in these types of immigration detention.
Two additional safeguards in relation to non-prison detention have been proposed in response to concerns raised by the AHRC and Law Council of Australia:
The first safeguard would provide that an offender who is unable to comply with a condition of their control order or ESO, due to the fact that they are detained in non-prison custody, does not commit an offence under section 104.27 or proposed section 105A.18A for breach of a control order or an ESO (Items 13 and 52 of the proposed amendments).
The second safeguard would provide that while an ESO is in force, the AFP Minister must make an application to the Court under proposed section 105A.9C to remove or vary an ESO condition if they are satisfied that the condition is no longer reasonably necessary, or reasonably appropriate and adapted, for the purpose of protecting the community from the unacceptable risk of the offender committing a serious Part 5.3 offence (Items 38-43 of the proposed amendments).
These safeguards would mean that an offender unable to comply with an imposed condition because the person is in immigration detention would not be subject to criminal liability for breaching an order, and secondly, would require the Minister to make a variation application in line with similar provisions relating to control orders (paragraph 104.19(1)(b)).
The Law Council of Australia recommended that amendments should include a requirement for the Court to consider the implications of immigration detention, and provide arrangements for those in immigration detention to access legal assistance and other relevant services and information. The Attorney-General’s Department and Department of Home Affairs said that a requirement for the Court to consider the implications of immigration detention is not necessary, as the Court is required to be satisfied that each of the conditions imposed by an ESO or control order are reasonably appropriate and adapted.
Further, the immigration detention network has ‘long-established processes for detainees to access legal assistance and health services, including counselling, as well as providing access to communications and technology, visitors and programs and activities’.
Provisions relating to the Supreme Court
The second amendment proposed would limit the state or territory Supreme Court to considering only an ESO or control order as a potential ‘less restrictive measure’ in an application for a CDO. The Attorney-General’s Department and the Department of Home Affairs said this measure would not unreasonably limit the discretion of the court for a number of reasons:
The Government’s view is that the amendment does not unreasonably limit the discretion of the court in relation to the consideration of an offender’s risk and the appropriate order to manage that risk for the following reasons:
The threshold for the Court to make a CDO could not be met if it were established that an offender may be managed effectively in the community.
Part 5.3 orders are designed to manage the full spectrum of risk that terrorist offenders pose to the Australian community by enabling a Court to tailor an order and impose conditions according to the level of risk an offender poses.
The Court, under an ESO, would have the ability to make any conditions it considers reasonably necessary, and reasonably appropriate and adapted to prevent the risk posed to the community.
The amendment would not remove the Court’s broad discretion when determining an application for a CDO, including the discretion to not make a CDO even where the Minister has satisfied the Court of all the legislative requirements for the order to be made.
The proposed amendments would ‘clarify that the only alternative measures to a CDO that the court may consider are Commonwealth statutory orders which are specifically designed to manage terrorism risk’. Item 33 of the proposed amendments explicitly provides that:
(c) the Court is satisfied that there is no less restrictive measure available under this Part that would be effective in preventing the unacceptable risk.
A proposed note would clarify that an example of a less restrictive measure available under this Part is an ESO.
The Attorney-General’s Department and the Department of Home Affairs said this issue arose in Minister for Home Affairs v Benbrika where the court considered a range of measures not specifically designed to manage the risk of high-risk terrorist offenders in the Australian community:
…the current provision allows a court to potentially consider any measure or action (or combination of measures or actions) that it deems less restrictive, which may allow for consideration of measures which are not specifically designed to manage the risk posed by high risk terrorist offenders to the Australian community.
This arose during the only CDO application to have been considered by a Court to date. While the CDO was made, the Court considered 24-hour police monitoring, a control order, and the hypothetical cancellation of the offender’s visa (and resulting immigration detention and removal from Australia) as alternative ‘less restrictive measures’.
The AHRC said that the introduction of such an amendment would be inconsistent with Australia’s international human rights obligations:
It may be that in the circumstances of a particular case, the Court considers that an ESO is more likely to be effective in preventing risk than other alternatives such as visa cancellation and removal from Australia. However, preventing the Court from even considering those less restrictive alternatives to a control order or ESO would fetter the Court from fulfilling a legitimate function consistently with international human rights law—namely, to identify the most appropriate risk-prevention response in respect of an individual whom the Government considers poses a threat to the Australian community, while impinging no more than is necessary on that individual’s human rights.
The AHRC and the Law Council of Australia did not recommend that the proposed amendment proceed, and disagreed with the position of the Attorney-General’s Department and the Department of Home Affairs on the reasonableness of the limitations on the Court’s discretion, and said that based on the recent CDO application, the Court would be reluctant to exercise its residual discretion to decline a CDO where the statutory criteria had been met.
The Law Council of Australia recommended that the drafted amendments be subject to appropriate parliamentary scrutiny:
These two proposals are significant in their own right. They should not be subjected to a truncated scrutiny process because of time constraints pertinent to the separate policy objective to establish the ESO regime, so as to provide an alternative preventive order to CDOs which is available in relation to prisoners whose release dates are imminent.
Rather, if the Government intends to proceed with the proposals described in Supplementary Submission 5.3, the relevant amendments will require detailed examination, which should be conducted via the usual, well-established, and participatory mechanisms of Parliamentary scrutiny. That includes the review of the proposed legislation by the Committee, as well as the usual reviews by the Senate Scrutiny of Bills Committee and Parliamentary Joint Committee on Human Rights (covering both their interim and final reports, with the latter reports taking account of matters raised in correspondence with the relevant responsible Minister).
The Attorney-General’s Department and Department of Home Affairs noted the concerns of the AHRC and Law Council of Australia, but maintained that the amendment is necessary and appropriate:
…under an ESO, a Court will be able to impose any condition it considers meets this threshold. This means that the Court could consider the full range of possible conditions which fall short of the offender’s continued detention, preserving the broad discretion of the Court to consider possible less restrictive measures.
The Committee notes the concerns of the Law Council of Australia in relation to expanding the application of post-sentence orders to breaches of a post-sentence order. The Committee notes that the ability to apply discretion to minor or unintentional breaches of conditions may ameliorate the risk of prolonged periods of imprisonment as a result of breaches of conditions. The Committee may return to this issue to consider the impact of these provisions in the future.
In addition, the Committee also notes the concerns of the Law Council of Australia in relation to the expansion of certain conditions available under control orders as part of the Bill. The Committee will consider the adequacy of conditions in general as part of its concurrent Review of police powers in relation to terrorism, the control order regime, the preventative detention order regime, and the continuing detention order regime, but considers that aligning the conditions in the ESO scheme and the control order scheme is appropriate.
The Committee notes the evidence of the Australian Human Rights Commission that it would prefer the retention of two subsections that provide that the court need not include an obligation, prohibition or restriction in an interim control order, or when confirming a control order, that the Court is not satisfied meets the relevant purpose of the order and is therefore unnecessary. While the Committee supports the inclusion of material that assists the Court in decision-making, the Committee considers that the Bill’s requirements in relation to satisfaction in a condition is adequately covered by the provisions in the Bill.
The Committee notes the proposals to amend the Bill put forward by the Attorney-General’s Department and the Department of Home Affairs in its supplementary submission in May 2021, as well as the concerns put forward by the Australian Human Rights Commission and the Law Council of Australia.
The Committee is satisfied that the safeguards proposed in the amendments are sufficient to allow the Supreme Court a degree of discretion and flexibility, while maintaining the integrity of the ESO scheme. The Committee may wish to review the practical application of the amendments in future.
The Committee supports the Bill, and the introduction of the ESO scheme as an additional tool available to address the threat of terrorism. The Committee supports the passage of this Bill following the implementation of these recommendations.
The Committee recommends that, following implementation of the recommendations in this report, the Bill be passed by Parliament.