David Leyonhjelm (NSW, Liberal Democratic Party) Share this | Hansard source

I rise to oppose the Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016. It would effectively allow for life imprisonment of someone who was not originally sentenced to life imprisonment, even when there is no fresh or compelling evidence to question the original sentence and no suggestion that the original sentence was somehow tainted. Various stringent conditions have to be met to achieve effective life imprisonment of someone who was not originally sentenced to life imprisonment. I am happy that these conditions exist, but no amount of window-dressing can hide the fact that this is a fundamental assault on a basic human right. It amounts to imprisonment without trial.

We should not be able to effectively impose life imprisonment on someone who was not originally sentenced to life imprisonment. A court can impose a sentence of life imprisonment on someone who engages in a terrorist act or who prepares or plans a terrorist act. If a court that considers all the evidence and all the circumstances does not impose a life sentence, this judgment should not be thrown out when a prisoner's release approaches. To do so would be to effectively deny that person a fair trial. No Australian, no matter how seemingly abhorrent—and I acknowledge this is intended to apply to people who are pretty abhorrent—should be denied a fair trial. Courts are unable to impose a sentence of life imprisonment for acts that fall short of engaging in, preparing or planning a terrorist act. If, after committing such acts, a person is effectively imprisoned for life through continuing detention laws, we are effectively throwing out the statutes that set maximum penalties.

The fact that we have statutes that set maximum terms less than life imprisonment reflects the fact that we want to give people found guilty of certain offences another chance at freedom. We could be 100 per cent safe from reoffenders by locking up every prisoner for life, but that is not what we do. When the government passes a law with maximum penalties, the government is making a promise. It is promising that, if you commit that offence, your penalty will not exceed that maximum. The government undertakes this promise not for the benefit of terrorists; it does this for the benefit of all of us. We should all be able to know how the state will react if we behave in certain ways; otherwise, we are oppressed by the threat of arbitrary state action—like being blindfolded as you cross the street. The fact that people who committed terrorist offences in previous years did so without the threat of continuing detention does not mean that we should retrospectively impose the threat of continuing detention on these people now. Just because they acted oppressively does not mean that we should act oppressively.

When a court finds someone guilty, it must be satisfied beyond reasonable doubt. But proceedings for continuing detention are civil proceedings, and the court need only be satisfied to a high degree of probability that the person poses an unacceptable risk of committing a terrorist offence. The fact that we withhold punishment unless guilt is proven beyond reasonable doubt might sometimes allow the guilty to go free, but it also limits the injustice of people being punished beyond what is deserved. This principle should be retained. We should not be able to effectively impose life imprisonment on someone who was not originally sentenced to life imprisonment. And we do not need to. Courts are able to impose control orders on all terrorist offenders who finish their prison terms. Control orders severely constrain movement, activities and association, and they allow intrusive surveillance. If there is any deficiency in powers for control orders, let's fix them rather than pursue continuing detention.