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

by leave—I move amendments (1) through to (58) on sheet HU159 together:

(1) Schedule 1, page 4 (before line 4), before item 1, insert:

1A At the end of section 72.3 of the Criminal Code

Add:

Note: A court that is sentencing a person who has been convicted of an offence against this section must warn the person about continuing detention orders (see section 105A.23).

1B At the end of section 100.1 of the Criminal Code

Add:

Note: A court that is sentencing a person who has been convicted of an offence against this Part, the maximum penalty for which is 7 or more years of imprisonment, must warn the person about continuing detention orders (see section 105A.23).

1C Subsection 104.2(5) of the Criminal Code

Repeal the subsection, substitute:

(5) To avoid doubt, a senior AFP member may seek the Attorney-General's consent to request an interim control order in relation to a person even if:

(a) such a request has previously been made in relation to the person; or

(b) the person is detained in custody.

Note: An interim control order in relation to a person who is detained in custody does not begin to be in force until the person is released from custody (see paragraph 104.5(1) (d)).

1D Paragraph 104.5(1 ) ( d) of the Criminal Code

Repeal the paragraph, substitute:

(d) state that the order does not begin to be in force until:

  (i) it is served personally on the person; and

  (ii) if the person is detained in custody—the person is released from custody; and

1E After paragraph 104.5(1B ) ( a) of the Criminal Code

Insert:

(aa) if the person to whom the order relates is detained in custody—any other matter relating to the person's detention that the court considers relevant; and

1F After subsection 104.5(1B) of the Criminal Code

Insert:

(1C) To avoid doubt, if the person is detained in custody, the person has a right to attend court on the day specified for the purposes of paragraph (1) (e).

1G After subsection 104.5(2) of the Criminal Code

Insert:

(2AA) To avoid doubt, if a control order is in force in relation to a person, the control order does not cease to be in force merely because the person is detained in custody.

Note: However, if a person is detained in custody, and a control order is made in relation to the person, the control order does not begin to be in force until the person is released from custody (see paragraph (1) (d)).

1H At the end of subsections 104.10(3) and 104.12(1) of the Criminal Code

Add:

Note: For the personal service of documents on a person detained in custody, see section 104.28B.

1J After subsection 104.12(3) of the Criminal Code

Insert:

(3A) Paragraphs (1) (b) and (c) do not apply if the person in relation to whom the interim control order has been made is detained in custody and it is impracticable for the AFP member to comply with those paragraphs.

1K At the end of subsections 104.12A(2) and (4) and 104.17(1) of the Criminal Code

Add:

Note: For the personal service of documents on a person detained in custody, see section 104.28B.

1L After subsection 104.17(2) of the Criminal Code

Insert:

(2A) Paragraphs (1) (b) and (c) do not apply if the person in relation to whom the interim control order has been declared void, revoked or confirmed is detained in custody and it is impracticable for the AFP member to comply with those paragraphs.

1M At the end of subsections 104.20(3) and 104.26(1) of the Criminal Code

Add:

Note: For the personal service of documents on a person detained in custody, see section 104.28B.

1N Subsection 104.26(3) of the Criminal Code

Omit "interim control order", substitute "control order".

1P After subsection 104.26(3) of the Criminal Code

Insert:

(3A) Paragraphs (1) (b), (c) and (d) do not apply if the person in relation to whom the control order has been made is detained in custody and it is impracticable for the AFP member to comply with those paragraphs.

1Q After section 104.28A of the Criminal Code

Insert:

104.28B Giving documents to persons detained in custody

(1) A document that is required under this Division to be given to a person (the prisoner) personally who is detained in custody at a prison is taken to have been given to the prisoner at the time referred to in paragraph (3) (b) if the document is given to the following person (the recipient):

(a) the legal representative of the prisoner;

(b) if the prisoner does not have a legal representative—the chief executive officer (however described) of the prison, or a delegate of the chief executive officer.

Note: The obligation to inform the prisoner of the matters referred to in paragraphs 104.12(1) (b), 104.17(1) (b) and 104.26(1) (b) and (c) might not apply if it is impracticable for an AFP member to comply with the obligation (see subsections 104.12(3A), 104.17(2A) and 104.26(3A)).

(2) The recipient must, as soon as reasonably practicable, give the document to the prisoner personally.

(3) Once the recipient has done so, he or she must notify the Court and the person who gave the recipient the document, in writing:

(a) that the document has been given to the prisoner; and

(b) of the day that document was so given.

(2) Schedule 1, item 1, page 4 (before line 15), before the definition of continuing detention order in section 105A.2, insert:

Commonwealth law enforcement officer has the meaning given by Part 7.8.

(3) Schedule 1, item 1, page 4 (line 21), omit "order.", substitute "order; or".

(4) Schedule 1, item 1, page 4 (after line 21), at the end of the definition of continuing detention order decision in section 105A.2, add:

(c) a decision made under section 105A.15A (when a terrorist offender is unable to engage a legal representative).

(5) Schedule 1, item 1, page 4 (after line 23), after the definition of continuing detention order proceeding in section 105A.2, insert:

intelligence or security officer has the meaning given by Part 10.6.

(6) Schedule 1, item 1, page 5 (lines 25 and 26), omit subparagraph 105A.3(1) (a) (ii).

(7) Schedule 1, item 1, page 5 (line 29), omit "recruitment); and", substitute "recruitment), except an offence against subsection 119.7(2) or (3) (publishing recruitment advertisements); or".

(8) Schedule 1, item 1, page 5 (after line 29), at the end of paragraph 105A.3(1) (a), add:

  (v) an offence against the repealed Crimes (Foreign Incursions and Recruitment) Act 1978, except an offence against paragraph 9(1) (b) or (c) of that Act (publishing recruitment advertisements); and

(9) Schedule 1, item 1, page 6 (after line 10), at the end of subsection 105A.3(2), add:

Note 3: The offender may not be eligible to be released on bail or parole while the continuing detention order is in force (see section 105A.24).

(10) Schedule 1, item 1, page 7 (line 7), omit "6", substitute "12".

(11) Schedule 1, item 1, page 7 (after line 14), after subsection 105A.5(2), insert:

(2A) The Attorney-General must ensure that reasonable inquiries are made to ascertain any facts known to any Commonwealth law enforcement officer or intelligence or security officer that would reasonably be regarded as supporting a finding that the order should not be made.

(12) Schedule 1, item 1, page 7 (after line 19), after paragraph 105A.5(3) (a), insert:

(aa) include:

  (i) a copy of any material in the possession of the applicant; and

  (ii) a statement of any facts that the applicant is aware of;

that would reasonably be regarded as supporting a finding that the order should not be made; and

(13) Schedule 1, item 1, page 7 (line 32), omit "do any of the following", substitute "take any of the following actions".

(14) Schedule 1, item 1, page 8 (line 5), omit paragraph 105A.5(5) (c).

(15) Schedule 1, item 1, page 8 (after line 7), at the end of section 105A.5, add:

(6) However, the applicant must give the offender personally a complete copy of the application:

(a) if the Attorney-General later decides not to take any of the actions referred to in any of paragraphs (5) (a) to (d), or after the Attorney-General takes such action the Court makes an order—within 2 business days of the Attorney-General's decision or the order (as the case requires); and

(b) in any case—within a reasonable period before the preliminary hearing referred to in section 105A.6.

Note: For giving the offender documents, see section 105A.15.

(16) Schedule 1, item 1, page 8 (lines 15 to 18), omit subsection 105A.6(3), substitute:

(3) The Court may, either at the preliminary hearing or at any later time in the proceeding, appoint one or more relevant experts if the Court considers that doing so is likely to materially assist the Court in deciding whether to make a continuing detention order in relation to the offender.

(3A) The Attorney-General, the offender, or a legal representative of the Attorney-General or offender, may nominate one or more relevant experts for the purposes of subsection (3).

(17) Schedule 1, item 1, page 8 (after line 28), after subsection 105A.6(5), insert:

(5A) None of the following is admissible in evidence against the offender in criminal or civil proceedings:

(a) the answer to a question or information given at the assessment;

(b) answering a question or giving information at the assessment.

(18) Schedule 1, item 1, page 8 (lines 29 and 30), omit "subsection (5) and paragraph 105A.8(b)", substitute "subsections (5) and (5A) and paragraph 105A.8(1) (b)".

(19) Schedule 1, item 1, page 8 (line 32), omit "must include", substitute "may include any one or more of".

(20) Schedule 1, item 1, page 9 (after line 21), at the end of section 105A.6, add:

Other relevant experts

(8) This section does not prevent the Attorney-General, the offender, or a legal representative of the Attorney-General or offender, from calling his or her own relevant expert as a witness in the proceeding.

(21) Schedule 1, item 1, page 9 (line 37), omit "Note", substitute "Note 1".

(22) Schedule 1, item 1, page 9 (after line 37), at the end of subsection 105A.7(1), add:

Note 2: The rules of evidence and procedure for civil matters apply when the Court has regard to matters in accordance with section 105A.8, as referred to in paragraph (1) (b) of this section (see subsection 105A.8(3) and section 105A.13).

(23) Schedule 1, item 1, page 10 (line 18), before "In deciding", insert "(1)".

(24) Schedule 1, item 1, page 11 (line 8), after "any offence", insert "referred to in paragraph 105A.3(1) (a)".

(25) Schedule 1, item 1, page 11 (lines 11 and 12), omit paragraph 105A.8(g), substitute:

(g) the offender's history of any prior convictions for, and findings of guilt made in relation to, any offence referred to in paragraph 105A.3(1) (a);

(26) Schedule 1, item 1, page 11 (lines 13 and 14), omit "the relevant sentence of imprisonment", substitute "any sentence for any offence referred to in paragraph 105A.3(1) (a)".

(27) Schedule 1, item 1, page 11 (line 16), omit "offence;", substitute "offence.".

(28) Schedule 1, item 1, page 11 (line 17), omit paragraph 105A.8(j).

(29) Schedule 1, item 1, page 11 (after line 17), at the end of section 105A.8, add:

(2) Subsection (1) does not prevent the Court from having regard to any other matter the Court considers relevant.

(3) To avoid doubt, section 105A.13 (civil evidence and procedure rules in relation to continuing detention order proceedings) applies to the Court's consideration of the matters referred to in subsections (1) and (2) of this section.

(30) Schedule 1, item 1, page 11 (after line 23), after subsection 105A.9(1), insert:

(1A) On receiving the application for the interim detention order, the Court must hold a hearing to determine whether to make the order.

(31) Schedule 1, item 1, page 11 (lines 34 to 37), omit paragraph 105A.9(2) (b), substitute:

(b) the Court is satisfied that there are reasonable grounds for considering that a continuing detention order will be made in relation to the offender.

(32) Schedule 1, item 1, page 12 (lines 21 to 29), omit subsection 105A.10(1), substitute:

(1A) The Attorney-General, or a legal representative of the Attorney-General, must, before the end of the period referred to in subsection (1B), apply to a Supreme Court of a State or Territory for a review of a continuing detention order that is in force in relation to a terrorist offender.

Note: For when an application is not required to be made, see subsection (2).

(1B) The application must be made before the end of the period of 12 months after:

(a) the order began to be in force; or

(b) if the order has been reviewed under this Subdivision by a Supreme Court of a State or Territory—the most recent review ended.

(1) On receiving the application, the Court must begin the review of the order before the end of that period.

Note: For the process for reviewing a continuing detention order, see section 105A.12.

(33) Schedule 1, item 1, page 12 (line 30), omit "However, a review is", substitute "Despite subsection (1), an application for a review, and a review, are".

(34) Schedule 1, item 1, page 13 (line 1), omit "The review is to be conducted by", substitute "The application must be made to".

(35) Schedule 1, item 1, page 13 (after line 2), at the end of section 105A.10, add:

(4) If an application is not made in accordance with this section, the order ceases to be in force at the end of the period referred to in subsection (1B).

(36) Schedule 1, item 1, page 13 (before line 28), before subsection 105A.12(3), insert:

Relevant experts

(37) Schedule 1, item 1, page 13 (after line 30), after subsection 105A.12(3), insert:

(3A) The Attorney-General, the offender, or a legal representative of the Attorney-General or offender, may nominate one or more relevant experts for the purposes of subsection (3).

(3B) Subsection (3) does not prevent the Attorney-General, the offender, or a legal representative of the Attorney-General or offender, from calling his or her own relevant expert as a witness in the review.

(38) Schedule 1, item 1, page 14 (line 12), omit "Note", substitute "Note 1".

(39) Schedule 1, item 1, page 14 (after line 12), at the end of subsection 105A.12(4), add:

Note 2: The rules of evidence and procedure for civil matters apply when the Court has regard to matters in accordance with section 105A.8, as referred to in paragraph (4) (a) of this section (see subsection 105A.8(3) and section 105A.13).

(40) Schedule 1, item 1, page 14 (before line 15), before subsection 105A.12(6) (after the heading), insert:

(5A) The Attorney-General must ensure that reasonable inquiries are made to ascertain any facts known to any Commonwealth law enforcement officer or intelligence or security officer that would reasonably be regarded as supporting a finding that the order should not be affirmed.

(41) Schedule 1, item 1, page 14 (after line 16), after subsection 105A.12(6), insert:

(6A) The Attorney-General, or the legal representative of the Attorney-General, must present to the Court:

(a) a copy of any material in the possession of the Attorney-General or legal representative; and

(b) a statement of any facts that the Attorney-General or legal representative is aware of;

that would reasonably be regarded as supporting a finding that the order should not be affirmed.

(42) Schedule 1, item 1, page 15 (lines 1 to 4), omit subsection 105A.13(2), substitute:

(2) Despite anything in the rules of evidence and procedure, the Court may receive in evidence in the proceeding evidence of:

(a) the level of the offender's compliance with any obligations to which he or she is or has been subject while on release on parole for any offence; and

(b) the offender's history of any prior convictions for, and findings of guilt made in relation to, any offence.

(43) Schedule 1, item 1, page 15 (lines 11 to 15), omit subsection 105A.15(1), substitute:

(1) A document that is required to be given under this Division to a terrorist offender who is detained in a prison is taken to have been given to the offender at the time referred to in paragraph (3) (b) if the document is given to the following person (the recipient):

(a) the legal representative of the offender;

(b) if the offender does not have a legal representative—the chief executive officer (however described) of the prison, or a delegate of the chief executive officer.

(44) Schedule 1, item 1, page 15 (line 16), omit "chief executive officer", substitute "recipient".

(45) Schedule 1, item 1, page 15 (line 18), omit "chief executive officer", substitute "recipient".

(46) Schedule 1, item 1, page 15 (line 19), omit "officer", substitute "recipient".

(47) Schedule 1, item 1, page 15 (after line 22), after section 105A.15, insert:

105A.15A When a terrorist offender is unable to engage a legal representative

(1) This section applies if:

(a) a continuing detention order proceeding relating to a terrorist offender is before a Supreme Court of a State or Territory; and

(b) the offender, due to circumstances beyond the offender's control, is unable to engage a legal representative in relation to the proceeding.

(2) The Court may make either or both of the following orders:

(a) an order staying the proceeding for such period and subject to such conditions as the Court thinks fit;

(b) an order requiring the Commonwealth to bear, in accordance with the regulations (if any), all or part of the reasonable costs and expenses of the offender's legal representation for the proceeding.

(3) The regulations may prescribe matters that the Court may, must or must not take into account in determining either or both of the following:

(a) whether circumstances are beyond the offender's control;

(b) reasonable costs and expenses of the offender's legal representation for the proceeding.

(4) This section does not limit any other power of the Court.

(48) Schedule 1, item 1, page 17 (line 5), omit "force; and", substitute "force;".

(49) Schedule 1, item 1, page 17 (after line 5), at the end of paragraph 105A.18(1) (a), add:

  (v) an appeal against a decision under section 105A.15A to stay a continuing detention order proceeding in relation to a terrorist offender (including a decision under that section to stay a proceeding for a specified period or to impose a specified condition); and

(50) Schedule 1, item 1, page 19 (line 14), after "continuing detention order", insert "or interim detention order".

(51) Schedule 1, item 1, page 19 (lines 16 and 17), after "continuing detention order", insert "or interim detention order".

(52) Schedule 1, item 1, page 19 (line 32), after "made", insert "by terrorist offenders".

(53) Schedule 1, item 1, page 20 (after line 6), at the end of Subdivision F, add:

(1) A court that is sentencing a person who is convicted of an offence referred to in paragraph 105A.3(1) (a) must warn the person that an application may be made under this Division for a continuing detention order requiring the person to be detained in a prison after the end of the person's sentence for the offence.

(2) A failure by the court to comply with subsection (1) does not:

(a) affect the validity of the sentence for the offence; or

(b) prevent an application from being made under this Division in relation to the person.

105A.24 Effect of continuing detention orders on bail or parole laws

(1) A person in relation to whom a continuing detention order or an interim detention order is in force is not eligible to be released on bail or parole until the order ceases to be in force.

(2) Subsection (1) does not prevent the person from applying, before the order ceases to be in force, to be released on bail if the person is charged with an offence while the order is in force.

Note: Although the person can apply to be released on bail, as a result of subsection (1), the person cannot be released on bail until the continuing detention order ceases to be in force.

(3) This section applies despite any law of the Commonwealth, a State or a Territory.

105A.25 Sunset provision

A continuing detention order, and an interim detention order, cannot be applied for, or made, after the end of 10 years after the day the Criminal Code Amendment (High Risk Terrorist Offenders) Act 2016 received the Royal Assent.

(54) Schedule 1, item 2, page 20 (before line 12), section 106.8 (after the heading), insert:

(1) The amendments of section 104.2 made by the Criminal Code Amendment (High Risk Terrorist Offenders) Act 2016 apply in relation to any control order, whether made before or after this section commences.

(2) The amendments of subsections 104.5(1) and (1B) and section 104.12 made by that Act apply in relation to a control order if the request for the control order is made after this section commences.

(3) Subsections 104.5(1C) and (2AA), as inserted by that Act, apply in relation to any control order, whether made before or after this section commences.

(4) The amendments of section 104.17 made by that Act apply in relation to any interim control order that is declared to be void, revoked or confirmed after this section commences.

(5) The amendments of section 104.26 made by that Act apply in relation to any control order varied after this section commences.

(6) Section 104.28B, as inserted by that Act, applies in relation to the giving of documents after this section commences.

(55) Schedule 1, item 2, page 20 (line 12), omit "Division 105A, as inserted by the Criminal Code Amendment (High Risk Terrorist Offenders) Act 2016,", substitute "(7) Division 105A (except section 105A.23), as inserted by that Act,".

(56) Schedule 1, item 2, page 20 (after line 20), at the end of section 106.8, add:

(8) Section 105A.23, as inserted by that Act, applies in relation to any sentence imposed on a person after this section commences, whether the offence in relation to which the sentence is imposed was committed before or after that commencement.

(57) Schedule 1, page 20 (after line 20), at the end of the Schedule, add:

3 At the end of section 117.1 of the Criminal Code

Add:

Note: A court that is sentencing a person who has been convicted of an offence against this Part (except subsection 119.7(2) or (3)) must warn the person about continuing detention orders (see section 105A.23).

(58) Schedule 2, page 21 (before line 4), before item 1, insert:

Crimes Act 1914

1A Paragraph 3ZQU(1 ) ( e)

Omit "or 105", substitute ", 105 or 105A".

1B Paragraph 3ZZEA(1 ) ( d)

Omit "or 105", substitute ", 105 or 105A".

1C At the end of subsection 16F(1)

Add:

Note: A court that is sentencing a person who has been convicted of an offence referred to in paragraph 105A.3(1) (a) of the Criminal Code must warn the person about continuing detention orders (see section 105A.23 of the Code).

Independent National Security Legislation Monitor Act 2010

1D After subparagraph 6(1 ) ( a ) ( i)

Insert:

  (ia) without limiting subparagraph (i), Division 105A of the Criminal Code and any other provision of that Code as far as it relates to that Division; and

1E After subsection 6(1B)

Insert:

(1C) The Independent National Security Legislation Monitor must complete the review under subparagraph (1) (a) (ia) before the end of 5 years after the day the Criminal Code Amendment (High Risk Terrorist Offenders) Act 2016 received the Royal Assent.

Intelligence Services Act 2001

1F After paragraph 29(1 ) ( ca)

Insert:

(cb) without limiting paragraphs (baa) to (bac),to review, before the end of 6 years after the day the Criminal Code Amendment (High Risk Terrorist Offenders) Act 2016 received the Royal Assent, the operation, effectiveness and implications of Division 105A of the Criminal Code and any other provision of that Code as far as it relates to that Division;

I also table a supplementary explanatory memorandum relating to the government amendments. The government amendments to the Criminal Code Amendment (High Risk Terrorist Offenders) Bill give effect to the government's acceptance of all 24 recommendations of the Parliamentary Joint Committee on Intelligence and Security, and also some further amendments, arising from further consideration, of a minor nature. All states have indicated their agreement to these amendments under the terms of the Intergovernmental Agreement on Counter-Terrorism Laws. The amendments improve the safeguards, operations and oversight of the post-sentence preventative detention scheme for high risk terrorist offenders.

The amendments will provide that an application for a continuing detention order may be commenced up to 12 months, rather than six months, prior to the expiry of a terrorist offender's sentence. The scope of the offences to which the scheme applies will be limited by removing offences against subdivision B of division 80 of the Criminal Code—that is, the offence of treason—and offences against subsections 119.72 and 119.73 of the Criminal Code—that is, the offence of publishing recruitment advertisements. The government has accepted the view of the PJCIS that those two categories of criminal offences are not appropriate to be comprehended within the regime of the post-sentence detention scheme. The Attorney-General must apply to the Supreme Court for a review of a continuing detention order at the end of the period of 12 months after the order began in force or 12 months after the most recent review has ended, and the failure to do so will mean that the continuing detention order will cease to be in force.

The amendments provide that the Attorney-General must undertake reasonable inquiries to ascertain any facts known to a Commonwealth law enforcement or intelligence or security officer that would reasonably be regarded as supporting a finding that a continuing detention order should not be made or is no longer required. They provide that the application for a continuing detention order or a review of a continuing detention order must include a copy of any material in the possession of the Attorney-General or any statements of facts that the Attorney-General is aware of that would reasonably be regarded as supporting a finding that an order should not be made. They provide that on receiving an application for an interim detention order the court must hold a hearing where the court must be satisfied that there are reasonable grounds for considering that a continuing detention order will be made in relation to the terrorist offender.

The amendments also provide that each party to the proceeding may bring forward their own preferred relevant expert or experts, and the court will then determine the admissibility of each expert's evidence. They provide that any responses to questions or information given by the terrorist offender to an expert during an assessment will not be admissible in evidence against the offender in criminal or other civil proceedings. They provide that the criminal history of the offender that the court must have regard to in making its continuing detention order will be confined to convictions for those offences referred to in paragraph 105A.31A of the bill, that is terrorism offences. They provide that if the offender due to circumstances beyond his or her control is unable to obtain legal representation, the court may stay the proceeding and/or require the Commonwealth to bear all or part of the reasonable costs of the offender's legal representation in the proceeding.

The amendments provide that when sentencing an offender convicted under any of the provisions of the Criminal Code to which the continuing detention scheme applies the sentencing court must warn the offender that an application for continuing detention could be considered. Finally, they provide that the continuing detention scheme will be subject to a sunset period of 10 years after the day the bill receives royal assent.

Further, to enhance oversight of the continuing detention scheme, the amendments also provide that the Independent National Security Legislation Monitor Act 2

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

The Australian Greens will support these amendments on the basis that they make the legislation less bad and less draconian than it otherwise would have been.

Katy Gallagher (ACT, Australian Labor Party) Share this | Link to this | Hansard source

In line with the comments made by Senator Wong in her contribution to the second reading debate and consistent with the recommendations of the Parliamentary Joint Committee on Intelligence and Security, the opposition will be supporting the government's amendments this morning.

Gavin Marshall (Victoria, Deputy-President) Share this | Link to this | Hansard source

The question is that government amendments (1) to (58) be agreed to.

Question agreed to.

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I wish to ask the Attorney some questions that I flagged in my contribution to the second reading debate—which he did respond to, to be fair to him, in his summary on the second reading. But I want to indicate that his responses have raised further issues in the minds of the Australian Greens. Firstly, I just want to reject the categorisation of the Australian Greens as a left-wing authoritarian party--although it is reassuring to me that you believe that, Attorney, because it says to me that you do no understand what drives the Australian Greens, and while you do not understand what drives us you will never defeat us. So, it is reassuring to me that you have miscategorised the Australian Greens so egregiously.

With regard to the standard of proof, you have referred the Senate to the Briginshaw standard. I mentioned the Briginshaw standard, not by name but by effect, in my second reading contribution when I mentioned the term 'comfortable satisfaction'. Now, you said in your summary on the second reading that the standard of proof that this legislation creates, which is 'a high degree of probability', falls between the civil standard of 'balance of probability' and the criminal standard of 'beyond reasonable doubt'. You then referred us to the Briginshaw standard of 'comfortable satisfaction'.

So, Attorney, I have a couple of questions for you. Firstly, if it is your intent that the courts interpret a standard of high degree of probability as the Briginshaw standard of comfortable satisfaction, why did you not use those words—'comfortable satisfaction'—in this legislation? Secondly, can you please confirm that it is your intent that the courts interpret 'high degree of probability' as 'comfortable satisfaction'? I do think it is important that you place it on the record, because the courts may well come back to this debate in order to assist them in interpreting the legislation. Thirdly, I want to remind you that I have asked you whether there is any other legislation in any Australian jurisdiction that establishes a standard of proof of high degree of probability or comfortable satisfaction. That is a question specifically in regard to legislation, not to jurisprudence and previous decisions of any court in this country. Finally, could you also, if you are able, point the Senate to any other legislation, anywhere in the world, that uses the Briginshaw standard or the term 'high degree of probability' in establishing a standard of proof?

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

To deal with the last point first, every state, other than South Australia, uses the term 'high degree of probability' as the standard of proof in relation to state laws concerning the postsentence detention of serious violent offenders or serious sexual offenders. You are looking questioningly at me, Senator McKim, but that is what I am advised. In fact, in preparing this legislation we have been very mindful of trying to ensure that we have followed the existing state legislation quite closely, because the existing state legislation was upheld in the High Court some years ago in a case called Fardon's case. Therefore, to inoculate this legislation against the possibility of a constitutional challenge, we wanted to ensure that we based it on legislation which, as I said, the High Court has upheld.

I am reminded that Tasmania does not have a postsentence detention regime. Perhaps that is why you were looking at me doubtfully a moment ago, Senator McKim. But all of the other five states do, and, of the other five states, only South Australia does not use the term 'high degree of probability'.

Senator McKim, you also invited me to comment on the difference between the so-called Briginshaw standard, 'comfortable satisfaction', and the standard of 'high degree of probability'. I think it is prudent to leave that to the courts; I do. In closing the second reading debate I did respond to some questions you raised as to where 'high degree of probability' sits in the hierarchy of standards of proof between the traditional civil standard, 'balance of probabilities', and the traditional criminal standard, 'beyond reasonable doubt'. I think it is uncontroversial to say that it sits above the former and beneath the latter, as does the Briginshaw standard. In a parliamentary debate, to commentate on the way in which courts might interpret the standard and apply it to a particular case is I think something best avoided. I think that the application of an acknowledged and well-established standard of proof is something best left to the courts, before whom applications under this legislation will be brought, so I will refrain from doing that.

You asked me whether there is any other jurisdiction in the world which has such a standard. Senator McKim, I know that in the United Kingdom, with whose Attorney-General and Home Secretary I have had discussions, there is legislation very much akin to this. I believe that is the case in other states the European Union as well. Certainly, in the United Kingdom there is legislation akin to this.

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Thank you, Attorney-General, for your response. I will check the other state legislation to which you have referred. The reason I was looking doubtfully at you is that the advice you have just provided to the Senate is not consistent with the advice I have, but I am happy to double-check that. I do not seek to challenge you on that today. My advice is that some of the statutes at a state level actually do require a standard of proof beyond reasonable doubt, not a high degree of probability. But I will check that and, if necessary, we can resume the conversation a later date.

I wanted to now go to your view that an interpretation of where 'high degree of probability' sits in relation to the Briginshaw standard of 'comfortable satisfaction' is best left courts. I think the view that that is best left to the courts reflects to a degree, if I might say, your legal background here. As you know, I do not have a formal legal background and would regard myself more as parliamentarian than a lawyer, if I can put it in those terms. I will just respectfully say that I do not agree with you. I think it is the parliament's job to be clear with the courts about how they ought to interpret legislation. It remains my view the you ought offer some guidance to the courts in this debate in regards to how they ought to interpret the term 'high degree of probability' in relation to or in comparison to the Briginshaw standard of 'comfortable satisfaction'.

But I wanted to ask you a further question, which goes to the policy intent of this legislation. It is very simple one: why have you decided to make the standard of proof 'high degree of probability' rather than 'beyond reasonable doubt', which is obviously the criminal standard? I might add, that is standard those who the legislation applies to will have been convicted using.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to 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.

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I just want to address a couple of points there, Attorney. Firstly, we will just have to agree to disagree on the wisdom or otherwise of you, as the country's Attorney-General, offering more prescriptive guidance to the courts. I still maintain the view that it would be appropriate for you to do so, but, nevertheless, you have determined that, in your view, it is not, and that is a matter on which we will simply have to agree to disagree.

With regard to the standard of proof, you have spoken about the high degree of probability in the context of both the civil standard of proof and the criminal standard of proof. Just for clarity, I am not arguing that, if you are going to proceed with legislation of this type, you should be applying a lower standard of proof—that is, the civil standard of proof. I am not arguing that at all. I am actually arguing you ought to be applying a higher standard of proof, which is the criminal standard of proof.

I just need to make the point again that the people to whom this legislation might apply will have been convicted under criminal law using a standard of proof of 'beyond reasonable doubt'. I am just saying this to place it on the record. I know I am not going to convince you to change your view here, Attorney, but I do think it needs to be placed on the record. You are now proposing that the courts can imprison someone because they might commit a crime, and that they can do so using a standard of proof that is significantly lower than the criminal standard of proof. I just think that needs to be placed very clearly on the record.

You have categorised this as an unusual power, and that is a matter on which we completely agree. This is a very unusual power. You have indicated, Attorney, that it is your view that this power will be used sparingly, and I am paraphrasing you here. And can I say that, if I have paraphrased you correctly, that is a matter in which I join you in fervent hope—that it will only be used sparingly. But I do want to place on the record, Attorney, that you cannot make commitments on behalf of future parliaments, future attorneys-general or future holders of statutory offices in this country. You are simply not in a position to make commitments.

History is replete with examples of the misuse of powers that have been previously created. I could take you to those at length, if you wish, but I think that, given where we are on the last day of sitting, I will restrain myself. But I simply want to say that there are plenty of examples through history of parliaments that have created powers for a specific purpose to address a specific perceived issue and then in the future, and sometimes a long way in the future, those powers have been arguably misused. So the Greens still maintain our view here that there is a possibility that these powers would be used more often than sparingly in the future. We acknowledge that there is a sunset clause now attached to this legislation, but our concerns remain, and we remain opposed to this legislation.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to 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.