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Review into Division 105A of the Criminal Code

The Independent National Security Legislation Monitor (INSLM) has announced that he will conduct a review into Division 105A of the Criminal Code (Cth).

Division 105A of the Criminal Code establishes a scheme for the continuing detention of 'terrorist offenders', where a court is satisfied that a person poses an unacceptable risk of committing a serious terrorism offence if released into the community, at the end of their custodial sentence.

Background

Division 105A was introduced by the Criminal Code Amendment (High Risk Terrorist Offenders) Act 2016 (2016 HRTO Act) on 15 September 2016. The then Attorney-General Brandis explained:

There is no existing Australian regime for managing terrorist offenders who may continue to pose an unacceptable risk to the community following the expiry of their sentence. Law enforcement agencies can seek to rely on control orders to manage the risk of terrorist offenders upon their release from prison. However, there may be some circumstances where, even with controls placed upon them, the risk an offender presents to the community is simply too great for them to be released from prison. This is a significant public safety issue.

Section 105A.3(1) provides that a continuing detention order may be made in relation to a person if:

  1. the person has been convicted of:
    1. an offence against Subdivision A of Division 72 (international terrorist activities using explosive or lethal devices); or
    1. a serious Part 5.3 offence; or [sic]
    2. an offence against Part 5.5 (foreign incursions and recruitment), except an offence against subsection 119.7(2) or (3) (publishing recruitment advertisements); or
    3. an offence against the repealed Crimes (Foreign Incursions and Recruitment) Act 1978, except an offence against paragraph 9(1)(b) or (c) of that Act (publishing recruitment advertisements); and
  2. either:
    1. the person is detained in custody and serving a sentence of imprisonment for the offence; or
    2. a continuing detention order or interim detention order is in force in relation to the person; and
  3. if subparagraph (b)(i) applies—the person will be at least 18 years old when the sentence ends.

The Australian Federal Police (AFP) Minister (or a legal representative of the AFP Minister) may apply to the Supreme Court of a State or Territory for a continuing detention order. In practice, the Commonwealth, led by the Department of Home Affairs, decides on a case-by-case basis whether to apply for a continuing detention order in respect of an eligible offender based on information about an offender's criminal history, behaviour during their custodial sentence and level of risk.

The INSLM will be considering such issues as:

  • whether Div 105A is proportionate to threats of national security;
  • if the provisions are consistent with Australia's international obligations to combat terrorism;
  • if the provisions are consistent with Australia's human rights obligations;
  • whether the provisions currently provide adequate procedural fairness and/or safeguards for high-risk terrorist offenders;
  • the interaction of these provisions with similar State post-sentence detention regimes; and
  • the interaction of Div 105A with other provisions of the Criminal Code, such as Divs 104 & 105.

Submissions

All INSLM reviews are strengthened by public engagement and interest. The INSLM invites written submissions and asks that they be provided by Friday, 3 September 2021.

Further guidance about making a submission, including accessibility and other content requirements, are available on this website. (Please refer to the submissions information on this website.)

Submissions to the review will be published on the INSLM website. If you wish to make a confidential submission, or wish for part of your submission to be withheld from publication, this must be clearly indicated in your advice when providing your submission to the INSLM.

Persons who make submissions may be invited by the INSLM to give evidence at hearings conducted under the INSLM Act.

Views or opinions expressed in submissions reflect the views of the persons or entities making those submissions only. The publication of submissions on this website does not constitute any form of endorsement in either those submissions, or views or opinions expressed within them, by the INSLM.

Copyright in submissions or other related materials is not vested in the Commonwealth or the INSLM. The Australian Government does not accept responsibility for any breaches of copyright subsisting in submissions or other related materials.

Hearings

The INSLM will further consult with interested stakeholders through a series of private and public hearings. The public hearing will be held in Canberra on Thursday 7 October 2021. Further details will be announced closer to the date. In the interest of community health, all public engagement will be conducted in line with ongoing COVID-19 guidelines.