George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Hansard source

Senator Wright, I am aware of the view that preventative detention orders and control orders ought to be repealed. That was a view of the previous INSLM. It is not a universal view, nor was the INSLM's review the only review of these powers. The report of the COAG review, for instance, Senator Wright, with which perhaps you are familiar, recommended that control orders be continued.

I might say that the recommendation that the government has adopted, coming from the PJCIS, brings forward the sunset period by many years beyond what was initially contemplated. It was initially contemplated that the sunset period be extended by another decade. The original sunset period, after the Howard government introduced these provisions in 2005, was for them to sunset after a decade. When this legislation was prepared, a view was taken by the government, consistently with are COAG review, that control orders ought to remain a part of the apparatus available to the intelligence agencies. The utility of control orders is something that has been demonstrated, but they have been used sparingly in only the most extreme cases. There have only been two control orders sought and obtained in that decade: one in relation to David Hicks and the other in relation to Jack Thomas, both notorious terrorists, or, in Mr Hicks's case, an admitted terrorism supporter who trained with terrorist organisations in Afghanistan.

So the rather exuberant and in some cases hysterical language in 2005, that these control orders might be used oppressively, was proven to have been a false concern. They have been used rarely, selectively and, indeed, on only two occasions in the decade since. So, when the government considered the matter, the question we had to ask ourselves is: would we follow the view of one INSLM or would we follow the view of the COAG review? We decided to follow the view of the COAG review and keep control orders as part of our apparatus. But, in deference to the views of the members of the PJCIS, we have brought the period of the control orders back from a further decade to a date two years after the date of the next federal election, so they will sunset then and can be reviewed on that occasion.

In relation to preventative detention orders, that is also a very rare thing. There has never been a preventative detention order issued under the Commonwealth Criminal Code. There was recently a preventative detention order issued under the analogous or the complementary provisions of the New South Wales criminal law, which I understand is the first occasion on which that device has been resorted to. So, once again, the suggestion that these mechanisms might be used oppressively has not been realised. I note it was before you were in the Senate, Senator, so I do not blame you for this sentiment, but the fears of those who thought that this extraordinary power would be use gratuitously or arbitrarily have not been realised. The fact that on very rare occasions the authorities have felt the need to resort to them demonstrates their utility as a last resort in our apparatus.

As a further token of our concern to ensure that powers as unusual as this are not used excessively or arbitrarily or allowed to lie on the statute books unnecessarily, we have, as I said, foreshortened the extended sunset period from a decade hence to two years after the next federal election.