A hearing to review the Criminal Code Act that allows terrorists to continue to be detained after serving their sentence is underway.
AFP revealed it was monitoring five former terrorist offenders in the community, with a new application for an interim control order in court.
In addition, 20 of the 54 offenders serving sentences for terrorism are to be released within the next five years.
There are also 26 other alleged perpetrators of terrorism before the courts.
Division 105A was introduced by the Criminal Code Amendment Act (High Risk Terrorist Offenders) 2016 on September 15, 2016. It allows courts to issue detention orders (CDOs).
The orders allow courts to decide whether “terrorist offenders” should remain in custody if they pose an unacceptable risk of committing a serious terrorism offense if released.
They were designed to target offenders with a particularly high risk of recidivism; for example, a person convicted of using a lethal explosive decides or recruits.
Abdul Nacer Benbrika was the first person detained under a CDO after serving a 15-year sentence for leading a terrorist organization.
His order can be used to detain him until December 2023, when another three-year detention order will have to be applied for.
Speaking at Monday’s review hearing, Australian Human Rights Commission (AHRC) chairwoman Lorraine Finlay said she found the assessment process used to determine whether an offender presented a “high risk” of “problematic” recurrence.
“It may be that this risk assessment tool is the best tool available, but if it is an inadequate tool in terms of assessing future risks, well that is problematic,” said Ms. Finlay.
She said part of the problem was that there hadn’t been research and public understanding developed when it came to the risk assessment process.
“It is extremely concerning to us that these kinds of questions are being raised and that there does not seem to be any way to ensure that the risk assessment process allows us to meet this proportionality requirement,” he said. she declared.
The AHRC has suggested two main ways to adapt the legislation to meet Australia’s international human rights obligations.
The first is that courts should be made aware of the limitations of existing risk assessment tools for determining an offender’s level of risk.
Second, she suggested the creation of an independent risk management body that accredits experts, conducts research and develops risk assessment tools.
This would ensure that an offender’s ‘risk’ level is assessed in an ‘objective and independent manner’.
A similar system exists in Scotland – the Scottish Risk Management Authority – and has been operating since 2005.
AHRC also supports an amendment to Division 105 A to include the rehabilitation and reintegration of offenders into the community.
This would align the Commonwealth with the regimes in place in New South Wales, Victoria, Queensland and the Northern Territory.
Former Attorney General George Brandis said when the legislation came into effect that terrorist offenders released from prison posed a “significant public safety issue”.
“There is no Australian regime for dealing with terrorist offenders who may continue to pose an unacceptable risk to the community after their sentence has expired,” he said.
“There may be circumstances where, even with controls imposed on them, the risk an offender poses to the community is simply too great to be released from prison.
“This is an important public safety issue.”
Later on Monday, the hearing will receive evidence from the Home Office and the Attorney General’s Office.
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