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

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 post-sentence 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. However, in our submission we call for the abolition of continuing detention orders. The risk assessment tools underpinning these orders are deeply flawed and the regime amounts to arbitrary detention. 

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.

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. Terrorism offences in the Criminal Code are exceptional insofar 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.

Our modest submission, however, should not be taken to mean that we consider the entirely of Div 105A to otherwise be acceptable and proportionate. To be clear, Div 105A is fundamentally illiberal in nature and a matter of concern. We have chosen to focus our attention on the worst parts of Division 105A, but at Appendix A to this document sketch out our fuller views in response to the INSLM’s recent report. One of the INSLM’s primary recommendations was also for the abolition of CDOs.

Read our submission here.