Concerns have been raised about laws that allow convicted terrorists to be detained after serving their sentence if they are deemed to be at risk of re-offending.
Any further detention should only be used as a last resort and in light of strong evidence about the prospect of future offending, the Australian Human Rights Commission testified on Wednesday as part of an inquiry into the laws .
“Ensuring that laws in this area protect our national security, but also show great respect for human rights and freedoms, is not a sign of weakness in a counterterrorism response,” Commissioner Lorraine said. Finlay.
“It is a clear indication of the strength of our democracy and our values as a nation.”
She said the restriction on the liberty of offenders who had already served their sentence should be subject to periodic review.
The commissioner also raised concerns about the reliability of experts predicting the likelihood of future actions.
“There are real concerns from the commission’s perspective about the reliability of the tools that are currently being used to predict the risk of future terrorist activity,” Ms Finlay said.
But Ms Finlay proposed that the ‘control orders’ regime should ideally be repealed given the implementation of ‘prolonged supervision orders’, which are more tailored to the relative risk of a released offender.
UKTN National Security Legislation Monitor examines whether the power is proportionate to the threat to national security, meets Australia’s human rights obligations and provides adequate procedural fairness and safeguards.
INSLM director Grant Donaldson says the reliance on experts is inherently controversial.
“It’s controversial simply because what’s needed is competent experts to assist the court in assessing the risk of a defendant committing an offense in the future,” he said.
“It’s an unusual and difficult thing and it’s inevitably problematic.”
The commission’s deputy general counsel said offenders should not be detained after their sentence if the risk of re-offending is low.
Graeme Edgerton argued that the courts in NSW and Victoria had interpreted the current test as met if there was a remote possibility of infringement, but still offered an unacceptable risk ‘if the potential consequences are very serious’ .
“We say this should not only be ‘unacceptable’, but also ‘likely’,” he said.
“In terms of probability, we’re not saying it should be more likely than not, but there should be an element in there that means very unlikely events are also not the basis for keeping someone in detention.”
Mr. Donaldson also attempted to separate extremist ideology and violence.
“We seek to protect the community from extremist violence,” he said.
“Perhaps the key word in all of this is ‘violence’. People can have extremist ideologies – this does not necessarily translate into a risk of extremist violence.
Two restraining orders have been made in the Supreme Courts of NSW and Victoria, but no extended supervision orders have been ordered by the courts to date.
Section 105A of the Commonwealth Criminal Code establishes a regime for the continued detention of “terrorist offenders”, where a court is satisfied that a person presents an unacceptable risk of committing a serious terrorist offense if released into the community on end of his detention. phrasing.
At the time of its introduction in 2016, then-Attorney General George Brandis said there were circumstances where – even with a control order in place – the risk an offender posed to the community was too big for him to be released from prison.
The hearing will continue until Thursday.