Cth Introduces Bill To Establish Extended Supervision Order Scheme For High Risk Terrorist Offenders

Thursday 10 September 2020 @ 3.35 p.m. | Crime | Judiciary, Legal Profession & Procedure | Legal Research

The Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2020 (Cth) (the “Bill”) was introduced to Federal Parliament’s House of Representatives on 3 September 2020 by Christian Porter (Attorney-General). The Bill is currently before the House of Representatives.

Background

According to the Bill’s Explanatory Memorandum, the Bill is intended to “broaden the range of tools available to protect the community from the high level of risk that convicted terrorist offenders may pose once they are released”.

Currently, where a terrorist offender continues to pose a risk to the community at the expiration of their custodial sentence, the primary option for managing this risk is through seeking a Continuing Detention Order (“CDO”).  This involves seeking a court order to commit a terrorist offender to detention in a prison for the period the order is in force. Extended Supervision Orders (“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.

As noted in a Media Release from the office of Peter Dutton, the Minister for Home Affairs, the Bill:

“… will establish an extended supervision order scheme to ensure that high risk terrorist offenders who are released into the community at the end of their custodial sentences are subject to close supervision in proportion to the level of risk they pose to community safety.”

The Bill’s Explanatory Memorandum (“EM”) also notes the Bill:

“… will strengthen Australia’s counter-terrorism framework by amending Part 5.3 of the Criminal Code to establish an extended supervision order (ESO) scheme for high-risk terrorist offenders. The scheme will complement the existing continuing detention order (CDO) scheme in Part 5.3 of the Criminal Code, and will enable Supreme Courts to make, as an alternative to a CDO, an ESO with respect to a high-risk terrorist offender to prevent the risk they pose to the community at the end of their custodial sentence.”

Overview of the Proposed Amendments

According to the Explanatory Memorandum, the Bill is also intended to address the “current lack of inter-operability between CDOs and control orders in the Criminal Code due to the different courts from which these orders may be sought”.

Currently under Division 105A of the Criminal Code, a "State or Territory Supreme 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 – only the Federal Court or the Federal Circuit Court can make such an order.

The main amendments contained in Part 1 of the Bill include extensive amendments to:

  • Criminal Code Act 1992;

Consequential amendments contained in Part 2 of the Bill amend:

  • Administrative Decisions (Judicial Review) Act 1977;
  • Australian Security Intelligence Organisation Act 1979;
  • Crimes Act 1914;
  • Surveillance Devices Act 2004; and
  • Telecommunications (Interception and Access) Act 1979.

Further amendments contained in Part 3 amend:

  • Crimes Act 1914; and
  • Telecommunications (Interception and Access) Act 1979.

Reaction and Comment on the Bill

In his speech to Parliament, the Minister said:

“… convicted terrorist offenders can pose a very real threat to the community at the conclusion of their sentence. With several convicted terrorist offenders due to complete their custodial sentences of imprisonment in the next five years, the need for effective risk management measures to keep our community safe is greater than ever. The bill seeks to broaden the range of tools available to address the risk posed by convicted terrorist offenders.”

The Law Council of Australia quoted Law Council President, Pauline Wright as saying about the Bill:

“We appreciate that these are unprecedented times but given the extraordinary nature of ASIO’s detention powers they should not be further extended. We need to strike a balance between community safety and protecting individual freedoms. Australians expect our security agencies to respond proportionately to terrorism threats and it’s time the Federal Government repeals these powers once and for all.”

It was announced in a joint media release with Peter Dutton MP and Christian Porter MP:

“High-risk convicted terrorists will face even tighter controls when they are released from prison under a new intensive supervision regime designed to reduce the threat of them re-offending … Extended Supervision Orders will help to significantly reduce that danger by ensuring the broadest possible range of controls can be applied to offenders that are both proportionate to the risk and necessary to prevent them from doing further harm.”

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