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

Senator McKim, thank you for that contribution. Given it is the last sitting day of the year I do not want to prolong the debate, but I think the observations that you make do deserve a reasonably full response.

The criminal standard 'beyond reasonable doubt' is just not apt to make what is essentially an evaluative judgement in the application of this legislation. The test that the Supreme Court judge has to turn his or her mind to under proposed section 105A.7(1)(b) says:

… after having regard to matters in accordance with section 105A.8—

to which I will come—

the Court is satisfied to a high degree of probability, on the basis of admissible evidence, that the offender poses an unacceptable risk of committing a serious Part 5.3 offence if the offender is released into the community …

It also says:

(c) the Court is satisfied that there is no other less restrictive measure that would be effective in preventing the unacceptable risk.

The term 'unacceptable risk' is not a defined term, so that is why I say there is a level of evaluation in this judgement that the court must make. The criminal standard 'beyond reasonable doubt', which means you cannot have a reasonable doubt if you are going to reach a deferment of conclusion on the basis of the criminal standard, is just not apt in the application of that test because I daresay it could be always asserted that there is a reasonable doubt as to whether or not an offender—a prisoner, I should say—convicted of a serious terrorism offence would pose an unacceptable level of risk.

The criminal standard of proof is, in fact, a very rigid standard, and it is, as I say, just not apt to apply to a decision which involves a degree of evaluation of this kind. The matters to which the court has to have regard in proposed section 105A.8 include:

… the safety and protection of the community—

the report of any relevant expert—

… any report, relating to the extent to which the offender can reasonably and practicably be managed in the community … prepared by—

competent bodies; the offender's participation in—

… any treatment or rehabilitation programs—

while in prison—

… the level of the offender's compliance with … obligations to which he or she has been subject while—

imprisoned, on release, on parole or—

… subject to a continuing detention order or interim detention order;

… the offender's criminal history …

… the views of the sentencing court at the time—

of the conviction; and any other information that the court may have regard to. All of those matters set out quite a comprehensive list of relevant considerations to which the court needs to have regard. Those matters are only considered on the basis of admissible evidence, by the way—so hearsay is not allowed and other forms of information that are often allowed before decision-making bodies of this kind are not allowed here. It has to be admissible evidence, and the court has to make that evaluative judgement as to the unacceptable level of risk the offender poses to the community. That is why we have not used the very inflexible and, in this case, I suspect, practically impossible to satisfy, criminal standard of proof.

Bill, as amended, agreed to.

Bill reported with amendments; report adopted.