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

I am sorry. You correct me. It has been observed that detention must not be arbitrary. Of course that is right, Senator McKim. But the process, if you care to inspect the legislation closely, of detention beyond the expiry of a sentence of imprisonment is hardly arbitrary. There is a relatively high standard of proof required, as we have been discussing. It requires the Attorney-General, as the moving party who brings the application, to be satisfied of the level of risk to the community. And it is a judicial determination made by a Supreme Court judge. So none of the features of the process have the characteristic of arbitrariness in relation to the exercise of what is admittedly an unusual power and, I might say, a power that we would expect to see exercised very seldom, just as the power to detain beyond the expiry of a period of imprisonment high-risk violent or sexual offenders is used very sparingly and only in the most extreme cases.

Senator McKim, you quoted an academic, Dr Tulich, who has observed in an article in the UNSW Law Journal the apparent inadequacy of risk assessment tools. Let me address that matter. It is true that this is a relatively new discipline or subdiscipline. It is a relatively new body of technical or perhaps clinical knowledge. But, nevertheless, there is developing expertise that has seen the development of risk assessment tools. I can tell you, Senator, that the Commonwealth has convened an implementation working group with legal, correctional and law enforcement representatives from each jurisdiction to progress all outstanding issues relating to the implementation of the proposed regime, including the development of a risk assessment tool specifically for the purpose of assisting experts under the scheme. Of course one of the categories of evidence which will be before a Supreme Court judge before whom an application for preventative detention is brought will be expert psychological evidence.

The working group to which I referred will analyse existing assessment tools to determine whether an existing tool can be modified or whether new tools need to be developed. The work may result in an existing tool being adopted or a bespoke tool being developed. The existing tools for violent extremist offenders are useful for identifying their degree of radicalisation and what type of intervention approach would be the most appropriate.

The main assessment tool that is utilised in Australia in the countering violent extremism intervention programs is called Radar. Radar was developed by psychologists and criminologists to support interventions to divert people from radicalisation and violent extremism. The working group is looking at the way in which the learnings that have been gleaned from the development of the Radar risk assessment can be applied to the assessment of a person to whom this legislation would apply as they approach the expiry of their term of imprisonment.

Senator McKim, you also raised a point about the scheme applying to preparatory offences. The policy rationale behind the Division 101 offences in the Criminal Code other than the offence of engaging in a terrorist act is the need to criminalise preparatory conduct. The general policy intent underlying the offences is the need to disrupt the preparatory stages of a terrorist attack. That was accepted by the Security Legislation Review Committee—or Sheller committee—and the PJCIS in 2006. It is, if I may say so, inaccurate and facile to regard this as an ordinary exercise in the operation of the criminal law. Once the crime has been committed the system has failed because the terrorism event will have occurred, which is why the focus of the relevant Division 101 of the Criminal Code is on prevention rather than punishment. By focussing on prevention rather than punishment, it criminalises acts done in preparation for the carrying out of the offence. That is the actus reus, as criminal lawyers would say: not the commission of the terrorist act, but the preparation for the terrorist act—just as, in the existing criminal law, conspiracy is a crime and attempt is a crime. A crime is not necessarily only committed when the ultimate event, to which the steps of the criminal are directed, occurs.

Senator Leyonhjelm, you made the observation that the effect of the legislation is to change the length of the sentence. Certainly it is the case that a person who is the subject of an order under this bill will find themselves detained for a longer period of time, but this is not a sentence. Conceptually, it is quite different. This is not a sentence of imprisonment as the punishment for an offence; it is a decision of a judge applying a different standard of proof, applying different considerations and being asked to decide whether it is necessary, in order to keep the community safe, for a very, very unusual power to be exercised in a particular case. So, although that might be the functional effect, it is not the purpose. It would not be jurisdictionally competent for a subsequent court, years later, to extend a sentence—after the appeal period had expired, at least.

Senator Xenophon, you asked me about programs to prevent radicalisation in prisons. It is an important issue that you raise. There are several such programs, particularly in New South Wales and Victoria, where almost all of the terrorism-related offenders in custody are currently undergoing their sentences of imprisonment. Those programs have been developed across jurisdictions through a body called the prisoner management and reintegration working group, and the learnings of the jurisdictions are shared through that group. The Commonwealth is assisting to fund those programs, in particular through the development of the Radicalisation and Extremism Awareness Program, which is one of the programs that addresses the problem you identify. There is a program in New South Wales called the Proactive Integrated Support Model, or PRISM, which the Commonwealth is part-funding over the coming four years, and a program operated within the Victorian system called the Community Integration and Support Program, or CISP. These programs are designed to address the issues you raised, Senator Xenophon. I commend the bill to the Senate.