Australia’s peak lawyers body has urged the government to abolish “fraught” powers that allow terrorist offenders to be imprisoned so as to prevent possible crimes being committed in the future.
Last week a damning report by Australia’s national security law watchdog recommended scrapping continuing detention orders, which allow terrorist offenders to be imprisoned for three years on the basis of predicted crimes rather than for any crime they have committed.
In the report the independent national security legislation monitor, Grant Donaldson, said he doubted “that anyone knows whether [the powers] have made us safer” and said CDOs were completely disproportionate to any terror threat.
The use of such preventive imprisonment powers made Australia an outlier among western nations, he said.
“Australia leads the world in making laws of a kind discussed in this report,” he said at the outset of his report.
The Law Council of Australia on Monday endorsed Donaldson’s findings and called on the federal government to urgently consider reforms to abolish CDOs.
“The Law Council’s longstanding position is that the CDO regime is not a necessary or proportionate response to the threat of terrorism,” said its president, Luke Murphy.
“Detention should not be available based on a prediction of a person’s future risk, which is a fraught exercise in the absence of an empirically validated risk assessment methodology.”
The attorney general, Mark Dreyfus, said he would “consider all of the recommendations” raised in Donaldson’s report.
But he also said the government would “always put the safety and security of Australians first”.
Asked whether the powers had made Australians safer, Dreyfus said: “I’ve only just received the report and of course have tabled it. We will be considering the report in due course.”
The Australian Human Rights Commission has repeatedly expressed concern about the use of CDOs. In its submission to Donaldson, the commission said the regime “imposes very severe restrictions on liberty outside the parameters of the ordinary criminal justice system”.
“In order to justify the extraordinary nature of the regime, there must be a substantial risk that the anticipated harm will in fact occur,” the commission said. “The commission considers that the current threshold does not strike an appropriate balance by permitting orders for continuing detention to be imposed where the risk of future harm is slight.”
Donaldson’s report also criticised the former government’s handling of a sensitive report, produced by academic Emily Corner, questioning the reliability of the tool used to determine a person’s likelihood of reoffending.
The government did not release the report and did not provide it to the subjects of CDOs, a fact revealed last year by Guardian Australia.
Donaldson described the handling of the report by the department as “shocking” and something of “very great concern”.
“It is shocking that orders have been made, and are being sought, with parties unaware that Dr Corner’s report exists,” he said. “As a result of this report, those who are the subject of applications for post-sentence orders, and courts dealing with these applications, will at least now be aware of its existence.”
Guardian Australia has previously revealed that lawyers for the convicted terrorist Abdul Nacer Benbrika say the government may have conspired to pervert the course of justice when it did not disclose the report.
Donaldson’s report also laid bare stark funding problems for the targets of CDO applications, which compromised their ability to be legally represented. Donaldson found virtually all defendants “will not be able to afford representation” and would be unlikely to be able to get support from legal aid bodies in various jurisdictions within the necessary timeframe.
“The commonwealth has the obligation to fund defendants confronting these applications and must fund them timeously and adequately,” Donaldson found.
The Law Council said it “strongly supports” the recommendation that the commonwealth be obliged to fund the legal costs of defendants.
“It is essential that defendants have, or be provided with, the capacity to respond to these applications in a manner consistent with their seriousness,” Murphy said.
The law also allows for post-sentence supervision of terrorist offenders through extended supervision orders. Donaldson recommended that the ESO powers remain but be reformed to ensure they focus primarily on rehabilitation and reintegration.
The Law Council agreed in principle that ESOs should remain but backed the call for reform, saying there must be an effort to “improve proportionality and better achieve the objectives of rehabilitation and reintegration of the defendant into the community”.
