The Law Council of Australia has argued that it is a slippery slope to detain people because they may commit a future offence under current terrorism laws.
Council president Tass Liveris told an inquiry into the laws that it was impossible to assess such a threat.
“The Law Council is not aware of any empirically validated methodology which would help courts and judges accurately assess this risk,” he said on Thursday.
The Independent National Security Legislation Monitor is scrutinising laws that allow high-risk terrorists to be kept in jail beyond their sentences.
Representatives of the Department of Home Affairs, the Attorney-General’s Department and the Australian Federal Police also appeared before the hearing in Canberra on Thursday.
The continuing detention orders are unnecessary and not proportionate to the risks posed, and the legislation should be allowed to lapse in December 2026, Mr Liveris said.
“What could be considered is an extended determinate sentencing regime,” he said.
“This would require a decision to be made by the court at the time of sentencing to add a discrete and additional protective component known as the ‘extension period’.”
Any extension of the continuing detention regime would need significant amendments, including increasing the standard of proof to “beyond reasonable doubt” from the current “high degree of probability”, the council argues.
“Minimising risk of harm to our community is vitally important, but it must be balanced against individual rights,” Mr Liveris said.
AFP deputy commissioner of investigations Ian McCartney told the hearing the orders provide police with recourse against terrorist offenders who still pose a risk to the community at the conclusion of their sentence.
“The AFP is tasked with protecting the Australian community from the threat of terrorism. Unfortunately, in our experience, certain terrorist offenders continue to hold extremist beliefs, even after having served their sentence,” he said.
“From the AFP’s perspective, while it’s still a relatively new framework, post-sentence orders serve an important function in managing the … risk posed by high-risk terrorist offenders to the Australian community.”
However, he said the review would ensure the regime remains fit for purpose and transparent.
