Submission: Review into Division 105A of the Criminal Code

NSWCCL and the Sydney Institute of Criminology have made a joint submission expressing concern about the Commonwealth’s continuing detention scheme for terrorist offenders and its lack of compatibility with human rights law and fundamental principles of criminal law.

We argue that serious consideration should be given as to whether the scheme is necessary. If the scheme is to continue, we argue that the scheme should be amended in substantial ways to enhance (to the extent possible) its compatibility with human rights law.


In 2016, Division 105A of the Criminal Code was introduced to enable the continuing detention of 'terrorist offenders', where a court is satisfied that a person poses an unacceptable risk of committing a serious terrorism offence if released into the community, at the end of their custodial sentence.

The then Attorney-General Brandis explained:

"There is no existing Australian regime for managing terrorist offenders who may continue to pose an unacceptable risk to the community following the expiry of their sentence. Law enforcement agencies can seek to rely on control orders to manage the risk of terrorist offenders upon their release from prison. However, there may be some circumstances where, even with controls placed upon them, the risk an offender presents to the community is simply too great for them to be released from prison. This is a significant public safety issue."

The Independent National Security Legislation Monitor is conducting a review to examine:

  • whether Div 105A is proportionate to threats of national security;
  • if the provisions are consistent with Australia's international obligations to combat terrorism;
  • if the provisions are consistent with Australia's human rights obligations;
  • whether the provisions currently provide adequate procedural fairness and/or safeguards for high-risk terrorist offenders;
  • the interaction of these provisions with similar State post-sentence detention regimes; and
  • the interaction of Div 105A with other provisions of the Criminal Code, such as Divs 104 & 105.

Our submission

Our primary submission is that the scheme breaches the fundamental legal principle that a person may only be imprisoned upon proof of their past breach of the criminal law. We also argue that the breadth of other counter-terrorism powers available to the Commonwealth to control terrorist offenders means that the necessity of the continuing detention scheme is questionable.

In the event that the scheme continues operation, it requires substantial amendment to ensure that its effect is not punitive, but properly preventive. The scheme should ensure that people who are subject to it are not treated as if they are serving sentences for crimes and extensive rehabilitative treatment and programs are made available to them. The aim of the scheme should be to restore the person to their liberty as soon as possible.

In addition, we make a number of other submissions about the structure of the scheme, including that the test for making a continuing detention order be amended to require the state to prove a higher than 50% chance that the offender will commit an offence that involves the doing or the supporting, or the facilitating, of a terrorist act if released to the community and made subject to a control order under Division 104 of the Criminal Code.

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