Nick Xenophon (SA, Nick Xenophon Team) Share this | Hansard source

Although I do not intend to make a long speech, the Criminal Code Amendment (High Risk Offenders) Bill 2016 is undoubtedly an important piece of legislation in terms of its significance for public safety, for how we deal with very important questions of legal principle in the criminal law and for the relationship between citizens' security and their liberty. As I have remarked in relation to previous bills in this field, there has been a steady drumbeat of counterterrorism legislation passed by the parliament since September 2001. Much of this legislation has been justified by the threat posed by terrorist groups. That said, the sheer volume of new laws should give us pause for thought. We could reasonably ask, I think, whether successive governments have found it much easier to propose new and often draconian legislation than they have to address more effectively the causes of terrorism and radicalisation of what are very small groups, indeed individuals, within the Australian community.

This bill introduces a new regime into part 5.3 of the Commonwealth Criminal Code that provides for the continued detention of high-risk terrorist offenders who have served a custodial sentence but are still considered by a court to present an unacceptable risk to the community. As senators are no doubt aware, there have been some 19 counterterrorism operations since September 2014, resulting in the charging of 48 persons—and no doubt we are safer as a result of those operations. The Attorney-General has told the Senate that across the country there are a total of 15 terrorist offenders serving a custodial sentence and 37 persons before the courts. This legislation has been brought before the parliament in anticipation that some of those persons currently incarcerated will still pose unacceptable risks to the community if they are released after finishing serving their current custodial sentences.

From time to time we read media reports concerning so-called high-risk terrorist offenders held in the New South Wales prison at Goulburn. It is claimed that some of these prisoners continue to hold extremist beliefs and may pose a significant threat to the community after the end of their sentences if not subject to some form of continuing control and in some cases, perhaps, continued detention. If this is so, I would suggest that the Commonwealth and state governments need to look again at the management of such prisoners, the effectiveness and resources devoted to de-radicalisation programs in our prisons, and the question of whether this legislation is an effort to deal with policy and operational failure in dealing with persons convicted of terrorism offences.

I do not make that claim, and perhaps some of these terrorist offenders are truly incorrigible and they are too much of a risk to the community and must be kept in custody indefinitely, but it bears thinking about. Have we allowed our high-security prisons to become indoctrination centres where Islamic extremism is perpetuated, perhaps strengthened, and in some cases spread to others? Perhaps the Attorney-General could provide the Senate with a detailed account of the measures and programs currently in place that are designed to de-radicalise or otherwise reform terrorist offenders and to prevent the radicalisation of other inmates who might also pose threats to the community.

There are, of course, precedents in state and territory legislation, as well as overseas in the United Kingdom and New Zealand, for post-sentence preventative detention regimes. Existing laws deal with high-risk sex offenders and/or violent offenders. These need to be considered. These laws were somewhat controversial when first introduced but that is a threshold already crossed in the interests of public safety, and that is why I support those sorts of laws regarding high-risk sex offenders and violent offenders. This bill adapts those arrangements to provide for a preventative detention regime for terrorist offenders who may continue to pose an unacceptable risk to the community following the expiry of their sentence.

As senators will be aware, law enforcement agencies can already seek to rely on control orders to manage the risk of terrorist offenders upon their release from prison. However, the Attorney-General has asserted that 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. While not wishing the Attorney to spell out how a person might evade or circumvent control orders, I think it would assist the Senate if he elaborated on this point and the nature of the potential threats he has in mind.

In his second reading speech, the Attorney-General referred to his consultations with the states and territories and the agreement of the states to enact amendments to existing referrals of power relating to part 5.3 of the Criminal Code to make explicit that state support extends to the post-sentence preventative detention regime. This is important to ensure the proposed regime has a sound constitutional foundation.

Given the implications of the legislation—to provide for potentially indefinite detention of persons who have already served custodial sentences—it is vital that the bill contain a range of important safeguards. The bill will enable the Supreme Court of a state or territory to make two types of detention orders against a person. The first is a continuing detention order, which will enable a person to be detained in prison for up to three years. However, further applications may be made, and there is no limit to the number of such applications. An order can only be made against a person who is currently imprisoned and serving a sentence for specified terrorism related offences under the Criminal Code. The second type of order a court can make is an interim detention order, which can last for up to 28 days. An interim detention order will be available in circumstances where the terrorist offender's sentence or existing continuing detention order will end before the court has had an opportunity to determine the continuing detention order application.

The bill provides that only the Commonwealth Attorney-General may make an application for a continuing detention order to the Supreme Court of the state or territory in which the person is currently imprisoned. The court must be satisfied to a high degree of probability, on the basis of admissible evidence, that the offender poses an unacceptable risk of committing a serious terrorism offence if the offender is released into the community. A serious terrorism offence is an offence in part 5.3 of the Criminal Code that carries a maximum penalty of seven or more years of imprisonment.

The court must also be satisfied that there is no other less restrictive measure that would be effective to ensure community safety against the risk the person presents. This is a very important aspect of the regime. This is a measure to protect the community, but it must also be a measure of last resort. A continuing detention order is appealable and must be reviewed every 12 months. Furthermore, a person must be at least 18 years old when their original sentence ends and cannot be accommodated or detained in the same area of a prison as persons serving ordinary sentences of imprisonment except in certain circumstances.

The Attorney-General appropriately referred this bill to the Parliamentary Joint Committee on Intelligence and Security, a committee that I think I will probably never ever be on, even if I wanted to—