Australia’s “extraordinary” preventive detention regime is disproportionate to the threat of terrorism, has made us a “coarser and harsher society”, and must be abolished, the watchdog overseeing national security laws says.
A damning report from the Independent National Security Legislation Monitor was tabled late Thursday, examining Australia’s use of continuing detention orders (CDOs) on terrorist offenders.
CDOs allow for “terrorist offenders” to be imprisoned for up to three years to prevent them from committing crimes, rather than for any crimes they have committed. Courts can use such powers where individuals are deemed an unacceptable risk of committing a serious terrorism offence if released.
The independent national security legislation monitor, Grant Donaldson, was damning in his assessment of the powers, quoting cautionary passages from Alice’s Adventures in Wonderland and Margaret Atwood, and saying he doubted “that anyone knows whether they have made us safer”.
“Australia leads the world in making laws of a kind discussed in this report,” he said at the outset of his report. “The law that this report discusses permits people in our society to be imprisoned, not as a punishment for a crime committed but because it is decided that their living freely in our society unacceptably risks them committing a crime in the future.”
“Only one Australian parliament, and a mere handful of Australian parliamentarians, have resisted these laws, and these laws have made us a coarser and harsher society. I doubt that anyone knows whether they have made us safer.”
The report recommends the abolishment of CDOs. It found they were not proportionate to any terrorist risk. The report said it was telling that neither the UK nor New Zealand had similar regimes.
But Donaldson also recommended reforming and keeping another form of post-sentence order, extended supervision orders (ESOs), which allow for the supervision of terrorist offenders after their release.
Donaldson said the laws underpinning ESOs must be reformed to ensure they were principally aimed at rehabilitation and reintegration.
He also recommended an independent statutory authority be created to oversee ESOs, which would ensure they were designed to “assist subjects of ESOs with their rehabilitation and reintegration into their communities”.
“At every review by the court of every ESO, the ESO Authority will report on the specified authority’s exercise of delegated powers by the specified authority in respect of the person the subject of review,” he said.
The high court has previously 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, though that defence was made under the previous government.
The Australian Human Rights Commission had previously urged Donaldson to abolish the regime.
The human rights commissioner, Lorraine Finlay, said that imposing restrictions on people who have completed their sentences was an “extraordinary measure” that could be justified under international human rights law “only in limited circumstances”.
Finlay said the commission shared “real concerns about the reliability of tools currently used to predict the risk of future terrorist activity”.
