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

Senator McKim, I acknowledge your point about the parliament, being the authors of the legislation, being perfectly entitled to entertain a discussion about the meaning of terms in the legislation; but I do think it is a little dangerous, where we are dealing with nuanced language that has to be applied by courts, to in this debate be making remarks that might be regarded as too prescriptive.

In relation to the policy issue that you raise, I think it is very simple: this is an unusual power. The reason for your opposition to it, and of Senator Leyonhjelm's opposition to it, is that you do not think the state should have this power. I acknowledge the force of that argument. It is for me to make the case that the circumstances are so exceptional, the safeguards are so extensive and the resort to these powers by government is so rare that we ought to create an exception to the general rule. The general rule is where a person has served their period of detention, if they receive a custodial sentence upon conviction for a crime, then they are a free man or woman. That is the basic position of the criminal law. It is the basic proposition upon which the penal system works. What we are doing is adding a new jurisdiction which will be rarely used and only in circumstances of extremity, defined by a serious risk to public safety in relation to likely recidivist terrorist criminals.

For that very reason, we do not think that the ordinary civil standard of proof—which, as I say, in layman's terms might be expressed as 'more likely than not'—is good enough. We do not. Just as we do not think that the civil standard is appropriate for the conviction of a crime upon criminal trial nor do we think the civil standard is appropriate to make such a serious order affecting the liberty of a person whose term of imprisonment has expired. But nevertheless, if this unusual jurisdiction is to be exercised, then it seemed appropriate to us—because this is not an application of the criminal law; this is a protective measure and not a punitive measure—that something more than the civil standard but something less the standard of proof in a criminal trial was the appropriate level of satisfaction that the decision-maker, a Supreme Court judge, needed to have.

I might say, in relation to that, that it is also relevant to point you to another provision of the act. That is, that a judge before whom an application of this kind is brought also has to be satisfied that there is not a less invasive way of dealing with the risk posed by the criminal who sentence is about to expire, such as, for example, a control order. The decision-maker, the judge, needs to be satisfied not only of the level of the risk but of the appropriateness of preventative detention as the most invasive form of protecting community safety in such a case.