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Supplementary submission: Review of the Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2020

The Law Council of Australia appeared before the Parliamentary Joint Committee on Intelligence and Security on 13 November 2020, as part of its inquiry into the Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2020 (Bill).

To assist the committee in its deliberations, the Law Council provided supplementary information about the following matters:

(1) questions from Senator Fawcett about the proposed adoption of the civil standard of proof for extended supervision orders (ESOs), as distinct to:

(a) the higher standard of a ‘high degree of probability’ currently applicable to continuing detention orders (CDOs); or

(b) the criminal standard of proof for both CDOs and ESOs, as recommended by the Law Council;

(2) questions from the Hon Mark Dreyfus QC MP, regarding differences between the proposed conditions for ESOs and the current conditions available for control orders (COs) under existing subsections 104.5(3)-(6) of the Criminal Code Act 1995 (Cth); and

(3) evidence from governmental witnesses at the public hearing, which suggested that the broader range of ESO conditions, as compared to the presently available CO conditions, is considered appropriate because:

(a) it would be compatible with the unlimited range of conditions able to be imposed under most State and Territory post-sentence supervision orders for dangerous offenders, including sexual offenders; and

(b) the imposition of each ESO condition is a matter for judicial discretion, in individual ESO applications. To impose a condition, the issuing court must be satisfied that the person presents an unacceptable risk of committing a serious terrorism offence, and that the condition is necessary for, and proportionate to, the management of that risk.
 

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