Prime Minister Malcolm Turnbull said last week he would table a proposal to allow the extension of convicted terrorists’ sentences beyond their prison terms.
Under the new laws, which were first proposed in April, high-risk terrorists who are deemed to pose a risk to society could continue to be held after their term expires, under a similar scheme that currently operates for extreme violent offenders and paedophiles in many states.
Courts would be granted power to review any decisions under this regime.
Law Council of Australia president Stuart Clark earlier this week warned the parliament to “proceed cautiously”.
“The federal government has a clear responsibility to ensure the nation is safe and secure, but it is crucial we do not compromise Australia’s commitment to the rule of law in the process,” Mr Clark said.
“The appropriate balance must be struck between ensuring national security on one hand and safeguarding the fundamental legal rights that are central to our democracy on the other.”
Mr Clark said applications for post-sentence controls should be put before a court in a proper hearing where the person subject to the order is given an opportunity to respond.
“The person who is the subject of the order must also be able to apply to the court to have their case reviewed should their circumstances change. The legislation itself should also be reviewed within three years of its commencement.”
The consequences for abandoning the principles underlying the rule of law could be high, Mr Clark warned.
“These elements might sound peripheral when set against the objective of keeping Australians safe, but if Australia abandons its rule of law principles, then the forces of global terrorism will have secured a significant victory over our nation.
Nonetheless, Mr Clark commended the government for accepting the recommendations laid out in a report by the Parliamentary Joint Committee on Intelligence and Security.
“By accepting these recommendations, it sends a strong message to the community that the government is serious about ensuring proper protections are in place for new counter-terrorism measures,” he said.
The Australian Bar Association also called for a cautious approach to the new legislation.
“Whilst acknowledging that the measures will only be used in the most serious of circumstances, nonetheless the ABA notes that the proposal needs to be safeguarded and subject to the same evidentiary and appellate review as any criminal proceeding,” he said.
“The ABA firmly believes in the rule of law and urges the government to maintain an appropriate balance between the undeniable need to keep the community safe with the protection of fundamental legal rights.”