Supplementary submission: Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2020
The Law Council of Australia thanks the Parliamentary Joint Committee on Intelligence and Security (Committee) for the invitation to comment on Supplementary Submission 5.3, in which the Attorney-General’s Department and Department of Home Affairs identified the Government’s intention to move certain amendments to the Bill under inquiry (HRTO Bill).
The proposals outlined in Supplementary Submission 5.3 appear to derive from an assessment of parts of the judgment on the first application for a continuing detention order (CDO), in Minister for Home Affairs v Benbrika  VSC 888 (24 December 2020) (Benbrika) as well as an assessment of the attributes and circumstances of the present cohort of offenders who are eligible for CDOs upon their release.
There has not yet been an opportunity to comment on the text of any proposed amendments, which would be essential to the Law Council’s ability to form a definitive policy position on the proposals described in Supplementary Submission 5.3. However, Supplementary Submission 5.3 provides the following general description of two proposals under consideration, at :
(a) in all circumstances, extended supervision orders (ESOs) and control orders [COs] can commence where a person is in immigration detention, and ensure that the conditions of the orders remain enforceable against an offender who is in immigration detention.
(b) ESOs and [COs] are the only measures to be considered by a state or territory Supreme Court when deciding whether there is a ‘less restrictive measure’ to a continuing detention order (CDO) that would be effective in preventing the unacceptable risk posed by an offender.
The Law Council’s initial policy position, based on the short description of the proposed amendments in Supplementary Submission 5.3, is listed on the following page, and explained in the balance of this supplementary submission. In brief, the Law Council’s views are:
- proposal (a) should not proceed unless and until further evidence of its necessity can be established, and further statutory safeguards in the issuing criteria for post-sentence orders are included; and
- proposal (b) should not proceed at all, either in the HRTO Bill or in any future legislative vehicle.
The Law Council provides these initial views with the caveat that it is likely to have further comments on the text of any proposed amendments, should the government decide to proceed with the proposals. The Law Council would therefore welcome an opportunity to review and comment on the legislative text in due course.
You can read the full submission below.