Controversial laws that allow courts to keep convicted terrorists in prison after their sentence has been completed should be dumped, according to the federal government's national security watchdog.
Terrorists deemed to pose an unacceptable risk of committing another offence can be held in prison beyond the completion of their sentence under Commonwealth law.
In a scathing new review of that law, the Independent National Security Legislation Monitor, Grant Donaldson, argues that it is unfair for a person to be punished for a crime they have not committed.
"These laws have made us a coarser and harsher society," he says. "I doubt that anyone knows whether they have made us safer."
The law allows for two different orders to be made: a continuing detention order (CDO), which keeps a person in prison, or an extended supervision order (ESO), which restricts a person's freedom in the community.
In 2020, Abdul Nacer Benbrika became the first convicted terrorist subject to a CDO, and later lost an appeal in the High Court challenging the validity of the law.
Mr Donaldson argues that ESOs should be maintained, and reformed, to add a new focus on rehabilitation and reintegration into the community.
However, he says, there is no place for CDOs to continue.
"Judges of superior courts in Australia have no particular qualification or skill in predicting the future," he says.
"The regard in which the Australian judiciary is held, and the sprinkling of judicial pixie dust on this power to order detention in a prison, should not obscure an irrebuttable risk of injustice.
"The risk of error posed by untestable judicial predictions about future behaviour, with the consequence of error being that a person will be detained in a prison for no good reason, cannot be ignored."
Vital information withheld from prior legal proceedings
The review is also sharply critical of a decision to withhold from court proceedings a report raising significant concerns about the risk-assessment process used to decide if terrorists can be released.
The Department of Home Affairs commissioned the report, authored by ANU academic Emily Corner, to test the validity and reliability of various risk-assessment processes.
It raised serious concerns about those processes, finding in part that "it is not reasonable to anticipate that the instruments are able to predict their specified risk with anything other than chance".
Mr Donaldson has previously raised concerns about secrecy around the report, which has never been released in full.
And, he said, it clearly should have been provided to Mr Benbrika's legal team, and to other defendants involved in similar cases.
"Dr Corner's report should have been provided to Mr Benbrika … there is no excuse for not doing so," he says.
Mr Donaldson's report recommends changes to the law requiring disclosure of any similar documents in future.
Federal Attorney-General Mark Dreyfus refused say whether the government would scrap the laws, instead saying the government would consider the report.
"This is a report by an independent statutory office holder the government will of course consider all of the recommendations of this office holder," he said.
"The government will always put the safety and security of Australians first."
The Department of Home Affairs has been contacted.
