Australia’s national security monitor has said it is “odd” that powers to detain terrorist offenders after their sentence expires do not include consideration of rehabilitation.
Grant Donaldson, the national security legislation monitor, made the comments at the start of an inquiry hearing about continuing detention orders on Tuesday.
Donaldson signalled he will probably call for a major shake-up of national security laws, including raising the bar for detaining people after their sentence expires and, in agreement with the Australian Human Rights Commission, that “control orders”, for people not convicted of crimes, should be abolished.
Under the current law, a court can order the continuing detention of a “terrorist offender” for up to three years if it is satisfied the person poses an unacceptable risk of committing a serious terrorism offence if released into the community.
The high court has upheld the validity of the law, although two judges in the minority warned that some offences such as joining a terrorist organisation did not meet the threshold for immediate harm required to justify such restrictions.
The home affairs department has defended the necessity of the powers, but Donaldson opened the inquiry by noting these represented the views of the Morrison government. He noted the election of Labor under Anthony Albanese and invited supplementary submissions.
Donaldson said the object of the law is to protect the community from terrorist threats but “seemingly quite deliberately does not include rehabilitation or reintegration of the offender into the community”.
Donaldson said this “oddity” had “important consequences” and “sits oddly” with the aims of sentencing, which include rehabilitation and reintegration as aims.
Donaldson noted that although only those convicted of a serious offence – carrying a maximum penalty of 25 years or more in prison – were eligible for continuing detention orders, they could be imposed on people who received much shorter than the maximum sentence for the same offence.
He asked for submissions about whether continuing detention orders should have “different integers or gateways” than the less restrictive continuing supervision orders, in which a court might impose parole-like conditions.
Donaldson warned it is “not acceptable” for detention orders to be sought after the expiry of a sentence, but noted this had occurred in “both cases” where they had been used to date.
Donaldson also criticised the “inevitably problematic” regime of evaluating the risk of future offending.
The AHRC’s freedom commissioner, Lorraine Finlay, said that imposing restrictions on people who have completed their sentences is an “extraordinary measure” and can be justified under international human rights law “only in limited circumstances”.
Finlay said the commission shares “real concerns about the reliability of tools currently used to predict the risk of future terrorist activity”.
The AHRC has submitted that control orders should be abolished, because they are “overwhelmingly” used on people after they have been convicted, who would be better dealt with by “extended supervision orders” which have more safeguards around the type of evidence that can be used.
Donaldson agreed that it was “difficult for me to see why both are required”.
On Thursday, the inquiry is due to hear from the Law Council, which submitted continuing detention orders are “not a necessary or proportionate response to the threat of terrorism, and should not be renewed beyond its current sunset date of 7 December 2026”.
If not abolished, it proposed “statutory limitations on indefinite detention as a result of multiple, consecutive [orders] being issued in relation to an individual”.
In January, the home affairs department submitted there was no need for “less restrictive measures” and continuing detention orders and control orders “provide for the management of terrorist offenders in custody and in the community”.