Submission: Review of post-sentence terrorism orders: Division 105A of the Criminal Code Act 1995

NSWCCL and Liberty Victoria have made a joint submission to the Parliamentary Joint Committee on Intelligence and Security responding to its review under section 29(bbaaa) of the Intelligence Services Act 2001 into the operation, effectiveness and implications of Division 105A of the Criminal Code, and any other provision of the Criminal Code Act 1995 as it relates to that Division.

Division 105A provides for post sentence orders in relation to terrorism. It enables two main forms of post-sentence orders: continuing detention orders and extended supervision orders.

We acknowledges 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 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* for the following reasons:

a. It can never be acceptable to deprive a person of liberty for what they might do in the future, when there is no valid or reliable way of assessing the likelihood of future re-offending;
b. The threshold for granting a CDO has been reduced to a very low bar and fails to provide any safeguard against unnecessary and punitive detention;
c. The statutory scheme cannot guarantee a fair trial. The very first instance of a CDO – the case of Benbrika – has revealed the ways in which the intended safeguards failed to protect a defendant;
d. In light of the above, a CDO will almost inevitably constitute arbitrary detention and run contrary to Australia’s international legal obligations.

Our submission does not endeavour to provide a full review of Div 105A, nor does it advocate for the abolition of ESOs. We do express concern however, that the entire scheme relies heavily on a risk assessment tool called the VERA-2R. There are serious problems with the VERA-2R in both its formulation and its use in Australia.

In addition to our primary submission that CDOs be abolished, we further urge the PJCIS to recommend that there be an independent inquiry into the use of the VERA-2R, including an investigation into the circumstances surrounding the non-disclosure of the Corner report to defendants in Div 105A proceedings, to the NSW government, to the Independent National Security Legislation Monitor (INSLM), and to the PJCIS in 2021.

Read more about this review here.


*NSWCCL (jointly with the Sydney Institute of Criminology) made a public submission to this effect in the Inquiry before the Independent National Security Legislation Monitor (INSLM): Andrew Dyer and Josh Pallas, ‘NSWCCL and SIC Submission: Independent National Security Legislation Monitor Review into Division 105A of the Criminal Code (Cth) (1 September 2021), One of the writers of this submission has also argued for the abolition of CDOs elsewhere: Andrew Dyer and Josh Pallas, ‘Why Div 105A of the Criminal Code 1995 (Cth) is incompatible with human rights (and what to do about it)’ (2022) 33 Public Law Review 61.