Liberty Victoria and the NSW Council for Civil Liberties (NSWCCL) thank the Parliamentary Joint Committee on Intelligence and Security (PJCIS) for the opportunity to contribute to this Review of postsentence terrorism orders: Division 105A of the Criminal Code Act 1995.

Liberty Victoria and the NSWCCL acknowledge the importance of protecting the community from acts of terrorism. Terrorism and the threat of terrorism violate the rights to life and security of innocent people. Terrorism is regarded as a crime apart from others as it threatens the very fabric of liberal democracy by utilising violence and fear to further, often fundamentally illiberal, political, religious or ideological goals.

The Australian Government has done much in the last twenty years to ensure that security agencies are equipped with powers of surveillance, detention and control to minimise the risk of an act of terrorism.1 Terrorism offences in the Criminal Code are exceptional in so far as they criminalise conduct that may lead to harm, rather than conduct that has caused harm. The purpose is to ensure that harm is prevented, not just punished after the fact.

The task currently before the PJCIS is to evaluate, in light of the recent INSLM report, the operation and merit of Div 105A, with a view to whether amendment may be necessary, and, if reform is required, what form such amendment should take. In assessing the merit and necessity of any security measure, a balance must be struck between the need to ensure security, and the need to protect the values that are lie at the heart of our democracy—values of liberty, justice, tolerance, and social cohesion.

Disproportionate and unjust security measures fail to serve the desired objective of protecting individuals in a democratic and liberal society. The measures themselves become instruments of injustice and oppression. The measures themselves reach a point where they subvert the very fabric of liberal democracy that they purportedly seek to protect.

Div 105A of the Criminal Code constructs a regime which allows for Continuing Detention Orders (CDOs) and Extended Supervision Orders (ESOs) to be made after a person’s sentence for terrorism related offences has expired. Liberty Victoria and the NSWCCL assert that CDOs are a disproportionate and dangerous infringement upon fundamental values of liberty and justice, and are incompatible with the tenets of a democratic society. They do not protect the community; they inflict unnecessary harm upon individuals and undermine the values of justice and liberty which are central to our democracy.

We submit that in order to preserve a sense of security and a society based on reason, principle and justice, CDOs must be abolished.

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