Additional Comments by Labor Members

Labor members agree with the Committee’s report, including each of its recommendations.
We would, however, like to make two further points.
First, we note that – in several significant respects – the bill departs from the recommendations made by the former Independent National Security Legislation Monitor, Dr James Renwick SC, in September 2017 when Dr Renwick recommended the introduction of an extended supervision order regime.
For example, Dr Renwick recommended that the standard of proof for an extended supervision order should be a “high degree of probability” – not “balance of probabilities”, as provided for in the bill. Dr Renwick wrote:
I also recommend that div 105A be amended to allow the state and territory supreme courts, on the application of the Commonwealth Attorney-General, to make either a CDO or an ESO for a period of up to three years (at a time) 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 if the offender is released into the community without either of those orders being made. The court should only to make a CDO if satisfied that an ESO would not be effective in preventing the identified risk.
Dr Renwick also recommended that the conditions that could be imposed under an extended supervision order should be identical to the conditions that can currently be imposed under a control order. And yet, under this bill, the list of potential conditions for an extended supervision order is not only different to – and longer than – the conditions that can currently be imposed under a control order, the list is not even exhaustive.
In its Review of police stop, search and seizure powers, the control order regime and the preventative detention order regime in 2017 and 2018, this Committee endorsed the Independent Monitor’s recommendations.
It should be noted that the Committee is, in effect, endorsing a departure from recommendations made by the Monitor where the Committee has, in a previous report, accepted those recommendations.
On the basis of the evidence considered by the Committee, Labor members do not believe that the departures have been adequately justified by the Government.
Second, Labor members were surprised to read a story in The Australian newspaper on 13 September 2021 reporting that “Home Affairs Minister Karen Andrews will seek to increase powers for security agencies and courts to keep high-risk terrorists in prison or monitor them”.
The Minister’s public comments ignored the fact that the former Independent National Security Legislation Monitor recommended the introduction of an extended supervision order regime over four years ago – and that it took the current Government three years after that to even introduce legislation into the Parliament.
Labor members also note that on 31 October 2018, the former Attorney-General, Christian Porter, told The Australian newspaper that “the government intends to introduce legislation to create an ESO scheme as soon as possible” — and yet legislation was not introduced until September 2020.
Hon Anthony Byrne MP
Deputy Chair
Hon Mark Dreyfus QC MPSenator Jenny McAllister
Senator the Hon Kristina KeneallyDr Anne Aly MP

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