Prime Minister Malcolm Turnbull recently said he would table a proposal to allow the extension of convicted terrorists’ sentences beyond their prison terms.
Subsequently the Australian Bar Association and the Law Council of Australia (LCA) warned the government to exercise caution in reforming anti-terrorism legislation, citing the need to safeguard the fundamental legal rights that are central to our democracy.
Federal Attorney-General the Honourable George Brandis QC hosted a meeting and press conference with state and territory attorneys-general on Friday 5 August, to discuss the introduction of a nationally consistent post-sentence preventative detention scheme for high-risk terrorist offenders.
“A post-sentence preventative detention scheme will help to protect the community from terrorist offenders serving custodial sentences who would pose a high risk to the community following their prison sentence,” Mr Brandis QC said ahead of the meeting.
“The highest priority of the government is to ensure the safety of the community. However, the government also recognises it must balance the wellbeing of the community with basic legal rights.”
The meeting concluded with Mr Brandis QC, along with the attorneys-general of NSW, Victoria, Queensland, Western Australia, South Australia and the ACT, as well as a representative of the Attorney-General of Tasmania and the National Counter-Terrorism Coordinator, deciding to make a Commonwealth proposal to amend part 5.3 of the Commonwealth Criminal Code to create such a regime.
Mr Brandis QC made it clear that safeguards would be put in place if such reforms were to go ahead.
“The government proposes that any post-sentence preventative detention regime contain a range of safeguards, including that only a court will be able to decide whether a person should be detained beyond the expiry of their sentence,” Mr Brandis QC said.
“To make a continuing detention order, the court would need to be satisfied to a high degree of probability, on the basis of admissible evidence including experts’ reports and psychological assessments, that the offender posed an unacceptable risk of committing a serious terrorist offence if released into the community, and that no other less restrictive measure would be effective.”
LCA president Stuart Clark AM welcomed the emphasis on maintaining safeguards.
“Keeping Australians safe from terrorism is obviously a profoundly important goal for governments at every level, but altering our post-sentence detention laws must be considered very carefully so as not to compromise the rule of law,” he said.
Mr Clark listed several further safeguards he recommends should be part of any post-sentence detention scheme.
“Applications for post-sentence controls must always be heard by a court where the person who is the subject of the application is given the opportunity to answer the material on which the application is based,” Mr Clark said.
“The scheme must be monitored by those responsible for its administration, the Parliament and the Independent National Security Legislation Monitor, and all orders must be periodically reviewed. 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.”
He added: “There should also be a commitment that any new legislation, at any level, should also be reviewed within three years of its commencement”.