Predicting future terrorism crimes bad basis for detention, lawyers warn

By Melissa Coade

June 24, 2022

The Law Council of Australia Tass Liveris says creating a way to detain terrorism suspects before a crime is even committed is a ‘slippery slope’. (Rawf8/Adobe)

A National Security Legislation Monitor (INSLM) public hearing has heard that a person should only be detained as a criminal sentence following conviction of an offence.

The Law Council of Australia (LCA)’s Tass Liveris told the INSLM that creating a way to detain terrorism suspects before a crime was even committed was a ‘slippery slope’.

Laws creating continuing detention orders (CDO) for suspected terrorists should not be renewed after four years, he added, because it was neither a necessary or proportionate response to the threat of terrorism. The sunset clause for the orders will be reached on 7 December.

“What is under consideration is whether someone sentenced for a terrorist act can be kept in jail beyond their criminal sentence, perhaps indefinitely, based on a perceived risk that they might commit a further terrorist offence sometime in the future,” Liveris said.

“This is a very slippery slope, and the LCA is not aware of any empirically validated methodology which would help courts and judges accurately assess this risk.”

Liveris made a submission on behalf of the peak representative body for Australian lawyers at a public hearing to the review of Division 105A of the Criminal Code Act 1995 (Cth) on Thursday.

He said the LCA had proposed amendments to the relevant legislation, similar to the UK’s extended determinate sentencing regime, with the goal of minimising risk of harm to the community.

“This would require a decision to be made by the court at the time of sentencing to add a discrete and additional protective component known as the ‘extension period’,” Liveris explained. 

The LCA further warned should the CDO scheme be extended, major amendments were needed for justice to be served.

“The most crucial of these is the adoption of the criminal standard of proof in relation to the finding that the person would present an unacceptable risk of committing a serious terrorism offence if released. Under the current system, the court only needs ‘satisfaction to a high degree of probability’,” Liveris said.

“Anyone facing the possibility of a CDO must have access to legal representation and this would require availability of timely legal assistance funding.”

With respect to extended supervision orders (ESO), Liveris told the public hearing the LCA did not oppose the idea ‘in-principle’ so long as it upheld a higher standard of proof. This same recommendation was made by former INSLM Dr James Renwick SC in 2017.

“An ESO imposes prohibitions, restrictions and other conditions on a person’s activities, association and movements in the community for up to three years,” the LCA said. 


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