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Division 105A (and related provisions) of the Criminal Code Act 1995 (Cth)

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Australia leads the world in making laws of a kind discussed in this 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.

In gentler times these kinds of laws did not exist, although some deny it. In times past, people who had committed crimes and served their sentences were thought to have paid their debt to society and lived with us in our communities, even though some reoffended.

In gentler times, the types of laws discussed in this report were the subject of parody. Lewis Carroll had Alice quiz the Queen:1

‘What sort of things do YOU remember best?’ Alice ventured to ask.

‘Oh, things that happened the week after next,’ the Queen replied in a careless tone. ‘For instance, now,’ she went on, sticking a large piece of plaster on her finger as she spoke, ‘there’s the King’s Messenger. He’s in prison now, being punished: and the trial doesn’t even begin till next Wednesday: and of course, the crime comes last of all.’

‘Suppose he never commits the crime?’ said Alice.

‘That would be all the better, wouldn’t it?’ the Queen said, as she bound the plaster round her finger with a bit of ribbon.

Alice felt there was no denying THAT. ‘Of course, it would be all the better,’ she said: ‘but it wouldn’t be all the better his being punished.’

‘You’re wrong THERE at any rate,’ said the Queen: ‘were YOU ever punished?’

‘Only for faults,’ said Alice.

‘And you were all the better for it, I know!” the Queen said triumphantly.

‘Yes, but then I HAD done the things I was punished for,’ said Alice: ‘that makes all the difference.’

‘But if you HADN’T done them,’ the Queen said, ‘that would have been better still: better, and better, and better!’

In gentler times, although not so long ago, the types of laws discussed in this report existed only in science fiction, as Philip J Dick’s conundrum of ‘precrime’ attests:2

As they walked along the busy, yellow-lit tiers of offices, Anderton said: ‘You’re acquainted with the theory of precrime, of course. …

[Witwer] ‘With the aid of your precog mutants, you’ve boldly and successfully abolished the post-crime punitive system of jails and fines. As we all realise, punishment was never much of a deterrent, and could scarcely have afforded the comfort to a victim already dead.’ …

Anderton said: ‘You’ve probably already grasped the basic legalistic drawback to precrime methodology. We’re taking in individuals who have broken no law.’

‘But surely, they will,’ Witwer affirmed with conviction.

‘Happily, they don’t – because we get to them first, before they can commit an act of violence. So the commission of the crime itself is absolute metaphysics. We can claim they are culpable. They, on the other hand, can eternally claim they are innocent. And, in a sense, they are innocent.’

Margaret Atwood has told us of a ‘surprise piece of information’:3

The future doesn’t really exist. Therefore it’s up for grabs because unlike the past nobody can fact check the future. If you’re a novelist that is a good thing.

Reviews required by s 6(1C) of the Independent National Security Legislation Monitor Act 2010 (Cth) (INSLM Act) are not about the coarsening of our society or vehicles for nostalgia about gentler times.

This report is the product of my review of the operation, effectiveness and implications of Div 105A of the Criminal Code Act 1995 (Cth) (Criminal Code).

Division 105A creates a scheme empowering State and Territory Supreme Courts to order that a person who has been convicted of and served a sentence of imprisonment for one or other ‘terrorist offences’ remain in detention in a prison (a continuing detention order) or be subject to orders that restrict that person’s freedom (an extended supervision order). Broadly, these orders are made when a court is satisfied that a person poses an unacceptable risk of committing a ‘terrorist offence’ if they are not detained or restrained.

Although regimes providing for these kinds of post-sentence orders commenced in 2003, and now exist in all Australian States and one of the Territories, Div 105A is the only Commonwealth law that empowers the making of these types of orders.

There is controversy about whether there are historical antecedents of these laws. But, whatever history truly tells us, and whatever international practice may teach us, orders of this kind are extraordinary. A central feature of the Australian constitutional arrangement is that deciding and punishing criminal guilt under a law of the Commonwealth is exclusively invested in courts and that, other than in exceptional cases, detention by government is only lawful if it is as an incident of this exclusively judicial function.4

The High Court has decided5 that the provisions of Div 105A are valid laws of the Commonwealth. This is on the basis that these laws empower courts to order detention that is not a penal response to criminal guilt. Rather, it is reasoned, these laws are preventive (of crime) or protective (of the community from crime).

In this review, I am required by s 8 of the INSLM Act to have regard to Australia’s human rights, counterterrorism and international security obligations. These are addressed, and their interaction considered, in chapter 5.

Division 105A steers a delicate course through the interface of human rights obligations to which Australia adheres, requirements of the Constitution, deeply rooted precepts of the common law and the threat that extremist violence poses to the community. The choices made by Parliament that underpin Div 105A are complex and difficult.

There are two post-sentence orders that can be made pursuant to Div 105A: the continuing detention order or CDO, and the extended supervision order or ESO.

1 Lewis Carroll, Through the Looking Glass (1871), chapter 5.

2 Philip J Dick, ‘The Minority Report’, Fantastic Universe (1956), page 1.

3 Margaret Atwood, ‘Rachel Carson Anniversary’, Burning Questions: Essays and Occasional Pieces 2004–2021 (Chatto and Windus, 2022), pages 170–171.

4 Chu Kheng Lim v Minister for Immigration Local Government & Ethnic Affairs (1992) 176 CLR 1 at [23] (Brennan, Deane and Dawson JJ).

5 Minister for Home Affairs v Benbrika (2021) 272 CLR 68.