2.1 This chapter considers the responses of legislation proponents to matters raised previously by the committee. The committee has concluded its examination of these matters on the basis of the responses received.

2.2 Correspondence relating to these matters is available on the committee's website.^[1]

Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2020^[2]

Purpose	This bill seeks to establish an extended supervision order scheme for high risk terrorist offenders, whereby a court could impose any conditions on a person that it is satisfied, on the balance of probabilities, are reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the community from the unacceptable risk of the offender committing a serious offence under Part 5.3 of the Criminal Code.
Portfolio	Attorney-General
Introduced	House of Representatives, 3 September 2020
Rights	Liberty; freedom of movement; prohibition against retrospective criminal laws; fair trial; privacy; freedom of expression; freedom of association; right to work; right to education; life; security of the person
Status	Concluded examination

2.3 The committee requested a response from the minister in relation to the bill in Report 11 of 2020.^[3]

Extended supervision order scheme

2.4 Schedule 1 of the bill seeks to amend the Criminal Code Act 1995 (Criminal Code) to establish an extended supervision order scheme for 'high-risk terrorist offenders'. This scheme would operate in tandem with the existing continuing detention order scheme in Part 5.3 of the Criminal Code (which allows the court to make an order to allow for the continued imprisonment of certain terrorist offenders after completion of their sentence). The orders would be collectively referred to as 'post sentence orders'.

2.5 On application by the Australian Federal Police Minister (or their legal representative),^[4] a State or Territory Supreme Court could make an extended supervision order, including as an alternative to a continuing detention order.^[5] The effect of an extended supervision order would be to impose conditions on the person, for a period of up to three years, contravention of which would be an offence punishable by imprisonment of up to five years.^[6] In addition, a court could make an interim supervision order of up to 28 days, where an application had been made for an extended supervision order.^[7] Another extended supervision order could be made after the original three year period expires.^[8]

2.6 To make an extended supervision order, the court would have to be satisfied on the balance of probabilities that there is an unacceptable risk of the offender committing a serious terrorism offence.^[9] The court may impose any condition it considers is reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the community from that unacceptable risk.^[10] The conditions that the court may impose are not limited in any further way, rather the bill sets out that such conditions may prohibit or restrict specified conduct, or impose obligations on the individual; or impose restrictions, obligations or prohibitions in relation to classes of conduct.^[11] The bill also sets out an extensive and non-exhaustive list of the conditions which a court may impose, including conditions that the offender:

• not be present at specified areas or places or classes of areas or places;

• reside at specified premises, and remain there between specified times each day (which should be for no more than 12 hours within any 24 hours);

• not leave Australia or the State or Territory in which they reside;

• not communicate or associate with specified individuals or classes of individuals;

• not access or use specified forms of telecommunications or other technology (including the internet);

• not engage in specified activities or specified work;

• not engage in specified education or training without permission;

• must undertake anything specified in the order or as directed by a specified authority relating to treatment, rehabilitation, intervention programs or activities, or psychological or psychiatric assessment or counselling.^[12]

2.7 A person would be eligible for a post-sentence order where: they have been convicted of a specified terrorism related offence;^[13] are at least 18 years old at the time their sentence ends; and a precondition for a post-sentence order is met. These pre-conditions include that the person:

• is currently detained in custody (either for the terrorism offence; for another offence but where they have previously been convicted of a terrorism offence;^[14] pursuant to a continuing detention order; for breach of an extended supervision order;^[15] or if they were subject to an extended or interim supervision order and they were imprisoned for another offence);

• has been released from prison, and is currently subject to an extended or interim supervision order; or

• has been released from prison, and is currently subject to an interim or confirmed control order.^[16]

2.8 The AFP minister or their legal representative would be required to apply for review of an extended supervision order within twelve months of the order being in force, or since the most recent review of the order; or if the individual is detained in custody, and the relevant order has consequently been suspended, on or before the day that the person's detention ends.^[17] In addition, the AFP minister or the subject of the order (or their respective legal representatives) could apply to a Supreme Court for review of a post-sentence order at any time,^[18] but the court must dismiss the application unless there are new facts or circumstances justifying the review, or it would be in the interests of justice to review the order.^[19]

Summary of initial assessment

Preliminary international human rights legal advice

Multiple human rights

2.9 To the extent that an extended (or interim) supervision order may have the effect of protecting the public from harmful acts, this scheme may have the capacity to promote the right to life and security of the person.^[20] The right to life imposes an obligation on the state to protect people from being killed by others or identified risks,^[21] and the right to security of the person requires the state to take steps to protect people against interference with personal integrity by others.^[22] The statement of compatibility notes that the bill promotes the rights to life and security of the person by providing an additional tool to manage the risk posed by terrorist offenders post-sentence.^[23] It states that the bill is aimed at a cohort of persons, post-sentence offenders, who in an overseas context have been proven to pose a risk to the security of persons by carrying out acts of violence.^[24]

2.10 In addition, as a court could now choose to make a supervision order rather than a continuing detention order, which would deprive a person of their liberty by causing them to continue to be imprisoned, this scheme may also promote the right to liberty.^[25]

2.11 However, the proposed introduction of an extended (and interim) supervision order scheme, which would be based on an assessment of a person's future risk of engaging in conduct, also appears to engage and limit a number of other human rights. At the outset it is noted that the imposition of a supervision order, that may significantly curtail individual rights and freedoms, which is said to be made not on the basis of criminal conviction but on the basis of future risk of offending, is a serious measure for the state to take. While the proceedings for a supervision order would appear to be characterised by the usual procedures and rules for civil proceedings,^[26] the application of these indicia of judicial processes does not alter the fact that the proposed supervision order scheme fundamentally inverts a basic assumption of the criminal justice system: that persons may only be punished on the basis of offences, the existence of which has been proven beyond reasonable doubt. This bill proposes that persons who have committed offences and have completed their sentences for those offences may continue to be subject to coercive and invasive supervisory measures, because, on the balance of probabilities (that is, it being more likely than not), the offender poses an 'unacceptable risk' of committing a terrorism offence in the future. This inverts a fundamental assumption of democratic systems of criminal law: that a person should not be punished for a crime which they may commit in the future. The United Nations Human Rights Committee has strongly cautioned against punishing a person again after their initial punishment has concluded, based on an assessment of possible future risk:

The concept of feared or predicted dangerousness to the community applicable in the case of past offenders is inherently problematic. It is essentially based on opinion as distinct from factual evidence, even if that evidence consists in the opinion of psychiatric experts... While Courts are free to accept or reject expert opinion and are required to consider all other available relevant evidence, the reality is that the Courts must make a finding of fact on the suspected future behaviour of a past offender which may or may not materialise.^[27]

Prohibition against retrospective criminal laws

2.12 The imposition of an extended supervision order may engage the prohibition against retrospective criminal laws. An individual would only be eligible for an extended or interim supervision order where they had been convicted of a specified terrorism offence. This could apply to persons currently incarcerated for such offences, even though the proposed scheme was not in existence at the point at which they were convicted.^[28] To the extent that this proposed scheme would apply to persons who have already been convicted and sentenced for a terrorism offence, imposing what could be considered an additional penalty, over and above the original sentence, this scheme could engage the absolute prohibition against retrospective criminal laws.

2.13 Article 15 of the International Covenant on Civil and Political Rights prohibits retrospective criminal laws. This requires that laws not impose criminal liability for acts that were not criminal offences at the time they were committed and that the law not impose greater penalties than those which would have been available at the time the acts were done. The prohibition against retrospective criminal laws is absolute and may never be subject to permissible limitations.

Multiple rights

2.14 In addition, the proposed introduction of an extended and interim supervision order scheme further engages and may limit a number of human rights. In determining an extended or interim supervision order, a court would be empowered to impose any condition on a person, which the court was satisfied was reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the community from the unacceptable risk of an offender committing a serious terrorism offence.^[29] Consequently, an extended or interim supervision order may engage and limit a wide range of human rights, including the:

• right to privacy, which prohibits arbitrary and unlawful interferences with an individual's privacy, family, correspondence or home; and protects the right to personal autonomy and physical and psychological integrity.^[30] A supervision order would involve an individual being subject to monitoring, and possibly being restricted in the activities which they may undertake and the places which they may go. A court may also order that a person must participate in treatment or rehabilitation programs, or undertake psychological or psychiatric assessment or counselling.^[31] Further, a court could order that an offender may apply for an exemption from some of the specified conditions, but to do so they would need to apply to a specified authority asking for such an exemption^[32] (for example, an offender may need to apply to a police officer to be allowed to go to a specified area to attend a doctor's appointment).^[33] In addition, the imposition of a supervision order would trigger a range of other monitoring powers^[34].

• right to freedom of movement, which includes the right to move freely both within one's country, and to travel to other countries.^[35] A supervision order could require that a person not be present at specified places or classes of place; that they reside at specified premises; that they remain at a specified premises for up to 12 hours per day; that they not leave Australia or their home state or territory; and that they surrender Australian or foreign travel documents.^[36]

• right to liberty,^[37] which prohibits the arbitrary deprivation of liberty, and potentially applies where a restriction on a person's movement is to such a degree and intensity that it would constitute a 'deprivation' of liberty, particularly where an element of coercion is present.^[38] A supervision order may require a person to remain at specified premises for up to 12 hours a day, or on specified days, which may constitute a 'deprivation' of liberty.^[39]

• rights to freedom of expression, assembly and association, which protect the right to all forms of expression and the means of their dissemination (including spoken, written and sign language and non-verbal expression), the right of all persons to group together voluntarily for a common goal and to form and join an association, including by gathering as a group.^[40] A supervision order may limit the persons or classes of person with whom a person can communicate or associate (including by limiting or prohibiting the use of social media or certain forms of communication).^[41]

• right to work, which provides that everyone must be able to freely accept or choose their work, and includes a right not to be unfairly deprived of work.^[42] A supervision order may limit the type of work (including voluntary work) which a person is permitted to undertake.^[43]

• right to education, which provides that education should be accessible to all.^[44] A supervision order may prohibit a person from engaging in any training or education without the prior permission of a specified authority.^[45]

• right to protection of the family, which requires the state not to arbitrarily or unlawfully interfere in family life and to adopt measures to protect the family.^[46] As a supervision order may prohibit a person from associating with certain persons, and prohibit them from travelling, such conditions could have the effect of interfering with that person's family life, and their ability to associate with their family members.^[47]

• right to freedom of religion,^[48] which includes the right to demonstrate or manifest religious or other beliefs, by way of worship, observance, practice and teaching.^[49] As a supervision order may prohibit a person from being present at specified areas or places (or classes of area or place), or from associating with specified individuals (or classes of persons), such conditions may have the effect of restricting a person's capacity to manifest their religious beliefs (for example, by attending religious worship).^[50]

• right to an adequate standard of living, which requires that the state take steps to ensure the availability, adequacy and accessibility of food, clothing, water and housing for all people in its jurisdiction.^[51] As a supervision order may require a person to remain in their house subject to curfew-like conditions and either not work, or the conditions may be so stringent they are not capable of working, this may limit their right to an adequate standard of living.

• rights of the child, which provides that children have special rights under human rights law taking into account their particular vulnerabilities.^[52] Where a child has been convicted of an offence and sentenced to imprisonment, the aim of the system in which they are incarcerated shall be to foster reformation and social rehabilitation.^[53] With respect to persons who were children at the time of their alleged offending, the United Nations Committee on the Rights of the Child directs that child justice systems should extend protection to children who were below the age of 18 at the time of the commission of the offence but who turn 18 during the trial or sentencing process.^[54] An individual may be eligible for an extended or interim supervision order where the relevant terrorism-related offence which renders them eligible was committed while they were aged under 18 years.^[55] That is, a child who was convicted of a terrorism offence, and subject to a custodial sentence which they completed as an adult, could be subject to an extended or interim supervision order.

2.15 Further information is required in order to assess the compatibility of the proposed measures with multiple human rights, and in particular:

(a) whether the type of conditions that may be imposed under an extended supervision order may be so severe as to amount to a penalty;

(b) why it is appropriate to apply the extended supervision order scheme to those who committed offences before this scheme (or the continued detention order scheme) was in operation;

(c) what factors would a court consider in determining whether a person poses an 'unacceptable risk' in the context of a court assessing a person's level of future risk under the proposed supervision order scheme, and what threshold would a court apply in determining whether a risk is an acceptable or unacceptable one;

(d) what evidence is there of a pressing and substantial concern to which the proposed extended and interim supervision order scheme is directed (including evidence of terrorism offenders in Australia who have been released from a custody sentence and subsequently engaged in terrorism related conduct);

(e) how an expert assessment as to the risk of a person engaging in future terrorism related conduct would be effective to accurately assess such a risk, and consequently whether the imposition of an extended supervision order would be rationally connected with the objective of protecting the public from terrorist acts;

(f) why, and in what respects, the power to release an offender on parole during the final quarter of their sentence (subject to conditions) would not be effective to protect the public from any potential risk sought to be addressed by these measures, including by supporting a person to rehabilitate and reduce their risk of recidivism;

(g) whether a person could be released from prison and be subject to both parole conditions and conditions under an extended or interim supervision order, and if so, how would any conflict between the two be managed;

(h) what percentage of persons who have been imprisoned for a terrorism offence under Part 5.3 of the Criminal Code have received parole in the past 10 years;

(i) whether, how, and to what extent the current prison services available to manage terrorist offenders are not effective in reducing the risk of recidivism with respect to terrorism offences;

(j) why it is appropriate that the civil standard of proof (balance of probabilities) should be required for the issue of an extended or interim supervision order, noting the potential significant impact on human rights by the imposition of a supervision order; and

(k) whether, as a matter of statutory interpretation, a court could impose a condition that an offender remain at specified premises for more than 12 hours within any 24 hour period, noting that the general conditions listed in proposed subsection 105A.7B(3) are expressly stated as being 'without limiting' a court's ability to impose any condition they were satisfied was necessary (under proposed subsection 105A.7B(1)).

2.16 The full initial analysis is set out in Report 11 of 2020.

Committee's initial view

2.17 To the extent that a supervision order may have the effect of protecting the public from harmful acts, the committee considered that this scheme would promote the right to life and security of the person. The committee also noted that the introduction of extended supervision orders would constitute a less rights-restrictive alternative to the existing continuing detention order scheme, as an individual subject to a supervision order would not be subject to continued imprisonment. In this respect, the committee noted that these measures may promote the right to liberty.

2.18 However, the committee considered that given the breadth of potential conditions which could be imposed under a supervision order, extended supervision orders also engage a number of human rights. The committee noted that most human rights may be permissibly limited if it is shown to be reasonable, necessary and proportionate.

2.19 In order to form a concluded view of the human rights implications of this bill, the committee sought the Attorney-General's advice as to the matters set out at paragraph [2.15].

Attorney-General's response^[56]

2.20 The Attorney-General advised:

Extended supervision order scheme
(a) Conditions
The Committee requested further information regarding whether the type of conditions that may be imposed under an extended supervision order (ESO) may be so severe as to amount to a penalty.
ESOs are designed to ensure the protection of the community from the unacceptable risk posed by convicted high risk terrorist offenders. They do not serve a retributive or punitive purpose, and the orders therefore do not have the character of a penalty. While the conditions which may be imposed by a Supreme Court under an order are restrictive, the court may only impose conditions if satisfied that each condition is reasonably necessary, and reasonably appropriate and adapted for the purpose of protecting the community from the unacceptable risk of the offender committing a serious Part 5.3 offence.
In determining whether a condition is reasonably necessary, and reasonably appropriate and adapted, the court is required to take into account, as a paramount consideration in all cases, the object of Division 105A, namely the protection of the community from serious Part 5.3 offences.
The legislation is designed to ensure that orders are appropriately tailored to protect the community from the specific risk posed by an offender, and that any limitation of the offender's rights is only to the extent necessary to protect the community from the risk posed of committing a further serious terrorism offence.
The process involved in identifying conditions for an ESO would be similar to the approach taken by the Australian Federal Police (AFP) in relation to control orders. When applying for a control order in relation to an individual, the AFP seeks controls which balance the need to ensure that the risk to the community can be mitigated, with the need to ensure that the individual can reintegrate into the community. These factors are considered in drafting the controls in control orders for released offenders and will continue to be important considerations in the drafting of ESO conditions. Operational experience in applying for control orders has also shown that courts have considered proposed control order conditions in close detail in determining whether the conditions are necessary and proportionate to achieve the protective purpose of the order.
The proposed ESO scheme includes safeguards which seek to ensure that any limitations on human rights are proportionate to the legitimate objective of protecting the community from the risk of terrorism. For example, it is open to an offender to apply to the court to vary a condition imposed under the order or to appeal the making of an order.
An offender may also apply to a specified authority for a temporary exemption to a condition, where the court specifies an exemption condition. This seeks to ensure that orders are not unduly onerous and allow for a level of flexibility, while maintaining their protective purpose.
(b) Application of the CDO and ESO scheme
The Committee requested further information regarding why it is appropriate to apply the ESO scheme to those who committed offences before the ESO scheme (or the continuing detention order (CDO) scheme) was in operation.
It is appropriate that the ESO scheme would apply to those who committed offences before the ESO scheme was in operation to achieve the purpose of the scheme, which is to protect the community from terrorist acts. The ESO scheme has been specifically designed and tailored to address the risk posed by high risk terrorist offenders who have committed, and been convicted of, a serious terrorism offence(s).
As noted in the Explanatory Memorandum to the Bill, the imposition of an ESO is not a penalty for criminal offending, as the purpose of an ESO is protective rather than punitive or retributive. While eligibility for a post-sentence order (ESO or CDO) depends on the person having been convicted of a specified terrorism offence, the decision of the court as to whether to impose an ESO is based on an assessment of future risk, rather than as punishment for past conduct. An order could only be made where the court is satisfied that the offender poses an unacceptable risk of committing a serious Part 5.3 offence once released in the community following their custodial sentence. Post-sentence orders are thus based on the risk posed by the offender as they are approaching completion of their custodial sentence, rather than at the time of conviction, consistent with their protective rather than punitive purpose. This is in line with similar state schemes which serve to protect the community from high risk violent and sexual offenders.
(c) Court's determination of 'unacceptable risk'
The Committee requested further information about the factors a court would consider in determining whether a person poses an 'unacceptable risk' (in the context of a court assessing a person's level of future risk under the proposed ESO scheme), and the threshold that a court would apply in determining whether a risk is an acceptable or unacceptable one.
In considering whether a person poses an unacceptable risk, the Bill provides that the court must have regard to a range of matters, which are listed in proposed section 105A.6B. These matters include:

• the object of Division 105A (being the protection of the community from serious Part 5.3 offences);

• any report of an assessment received from a relevant expert, and the level of the offender's participation in the assessment, under section 105A.6 or section 105A.18D;

• the results of any other assessment conducted by a relevant expert of the risk of the offender committing a serious Part 5.3 offence, and the level of the offender's participation in any such assessment;

• any report, relating to the extent to which the offender can reasonably and practicably be managed in the community, that has been prepared by State or Territory corrective services, or any other person or body who is competent to assess that extent;

• any treatment or rehabilitation programs in which the offender has had an opportunity to participate, and the level of the offender's participation in any such programs;

• the level of the offender's compliance with any obligations to which the offender is or has been subject while on parole or while subject to post-sentence order, interim post-sentence order or control order;

• the offender's history of any prior convictions for, and findings of guilt made in relation to, any offence referred to in paragraph 105A.3(1)(a);

• the views of the sentencing court at the time any sentence for any offence referred to in paragraph 105A.3(1)(a) was imposed on the offender; and

• any other information as to the risk of the offender committing a serious Part 5.3 offence.

The Bill provides that the court is not prevented from considering any other factor which it considers relevant. The court would determine what weight it gives to the matters listed in section 105A.6B.
Ultimately, it would be a matter for the court to make an assessment on a case-by-case basis, on the basis of admissible evidence, as to whether the risk an offender poses is unacceptable to meet the threshold for a post-sentence order. This would likely be informed by information which demonstrates the likelihood of the offender being at risk of committing a terrorism offence and the gravity of that potential offending. A court's assessment of whether a person poses an unacceptable risk may also be informed by their experience with similar supervisory schemes. For example, in determining what would constitute an unacceptable risk for the purposes of the Terrorist High Risk Offenders scheme, the courts in New South Wales consider both the degree of likelihood of the risk being realised and the extent of harm which might result from that realisation.
Consistent with the current approach to CDOs, the court would also have the ability to appoint an independent expert to help inform its decision about the risk posed by an offender, if the court considers that doing so is likely to materially assist the court in deciding whether to make a post-sentence order.
(d) Terrorism threat in Australia
The Committee requested further information about what evidence there is of a pressing and substantial concern to which the proposed ESO scheme is directed (including evidence of terrorism offenders in Australia who have been released from a custody sentence and subsequently engaged in terrorism related conduct).
The current threat level for terrorist acts remains at PROBABLE, which means that credible intelligence, assessed by Australia's security agencies, indicates that individuals or groups continue to possess the intent and capability to conduct a terrorist attack in Australia.
As noted in the Explanatory Memorandum to the Bill, the 2019 London Bridge and 2020 Streatham attacks in the United Kingdom were carried out by convicted terrorist offenders who had been released into the community. While Australia has not experienced a similar attack by convicted terrorist offenders to date, the evolving nature of the terrorism threat now includes a specific risk posed by released offenders, who can be highly radicalised, motivated and capable of engaging in further offending (or inspiring others to do so).
There is now a growing cohort of convicted terrorist offenders who have been released into the community following the end of their custodial sentences. Between January 2020 and October 2020, nine convicted terrorist offenders were released into the community, with a further 12 offenders due to be released between November 2020 and 2025.
It is essential that Australia's counter-terrorism framework effectively manages the risk posed by this cohort. The ESO scheme is designed to ensure that appropriate controls are available where a court is satisfied that a particular offender poses an unacceptable risk of committing a serious terrorism offence. This is necessary to ensure the safety and protection of the community from potentially catastrophic terrorist attacks.
(e) Expert assessments
The Committee requested further information about how expert assessments as to the risk of a person engaging in future terrorism related conduct would be effective to accurately assess such a risk, and whether the imposition of an ESO would be rationally connected with the objective of protecting the public from terrorist acts.
Expert assessors provide the court with their assessment of the person's risk of engaging in future terrorism acts, based on their professional judgement. The expert assessor considers the nature and extent of any risks presented by an offender by reviewing:

• the offender's offending history and past conduct;

• the offender's behaviour whilst serving their custodial sentence, including behaviours that indicate maintenance of or disengagement from violent extremist beliefs;

• the offender's participation in rehabilitation programs;

• the offender's plans on release from custody, including in relation to their family and social networks; and

• a structured psychosocial assessment of the offender using the Violent Extremism Risk Assessment 2 Revised (VERA-2R) tool and other appropriate assessment instruments.

When conducting the psychosocial assessment, the expert undertakes a risk assessment by combining their clinical expertise with the support of professional assessment tools such as the VERA-2R. The expert's assessment is based on factual information provided to the expert and information gained from interviewing the person. Instruments such as the VERA-2R support the assessor to identify and analyse risks presented by the person that are associated with terrorism related conduct. The VERA-2R is a structured professional judgement tool that supports a clinician to formulate a subject's risk of committing a violent extremism offence. The risk formulation is therefore ultimately a product of the expert's professional judgment. Unlike actuarial risk assessment tools, the VERA-2R does not claim predictive validity, but assists the assessor to identify and explore risk and protective factors that should be addressed to reduce the subject's risk of reoffending. It has been designed such that the offender's participation in an assessment is not required in order for an assessment to be made, and also permits the measurement of longitudinal change in offender risk over time.
The VERA-2R also supports the expert to explore scenarios in which the offender's risk might be increased or reduced, and identify case management and treatment strategies to reduce the risk. This includes informing the Government of the need for an ESO and the particular conditions that may reduce risk.
The VERA-2R has been subject to peer reviews and is widely used within Australia and internationally. It has also been used by the New South Wales Supreme Court in relation to applications under their Terrorist High Risk Offender scheme.
Instruments such as the VERA-2R do not produce a standalone risk assessment or risk prediction. The assessment is that of the expert, not the instrument itself. Instruments that give a statistical prediction of violent extremist reoffending are not available. The small numbers of convicted violent extremists who have been released and have subsequently offended does not provide a large enough sample for statistical analysis.
As noted in the Explanatory Memorandum to the Bill, the court must consider amongst other factors the report of an assessment conducted by a relevant expert of the risk of the offender committing a serious Part 5.3 offence (proposed section 105A.6B). It is then a matter for the court as to how much weight it chooses to afford to the assessment when deciding whether it is necessary to make an order to protect the public from terrorist acts. As such, the court's decision as to whether to impose an ESO is appropriately informed by an expert's assessment of the risk the offender poses of committing a further terrorism offence, and is rationally connected to the objective of protecting the public from terrorist acts.
(f) Parole for terrorist offenders
The Committee requested further information as to why, and in what respects, the power to release an offender on parole during the final quarter of their sentence (subject to conditions) would not be effective to protect the public from any potential risk sought to be addressed by these measures, including by supporting a person to rehabilitate and reduce their risk of recidivism.
Parole allows for the conditional release of offenders to serve the remainder of their prison sentence in the community. It does not provide an effective means to protect the public from the threat posed by high risk terrorist offenders at the end of their sentences. ESOs would provide an appropriately tailored option to manage the enduring risk that an offender poses to the community following their release. Orders would be available for up to three years. There is also the possibility of successive orders, providing that the court is satisfied that the offender continues to pose an unacceptable risk of committing a serious Part 5.3 offence. In contrast, conditions imposed on offenders released on parole can only apply for the duration of the offender's sentence.
Under section 19ALB of the Crimes Act 1914, the Attorney-General must only grant parole to a specified individual (including an individual convicted of a terrorist offence) where satisfied that exceptional circumstances exist to justify making a parole order. Exceptional circumstances are not defined. Section 19ALB does not operate as a blanket ban against parole for terrorists and terrorism-related offenders, and offenders still have the opportunity to be released into the community under supervision and parole conditions where there are exceptional circumstances. However, due to the seriousness of the offending it is appropriate that terrorist offenders are subject to a higher threshold when considered for release from prison.
Matters that are generally taken into consideration include (but are not limited to) the offender's engagement in rehabilitation, their behaviour in prison, their progression through prison classification systems, the views of operational agencies regarding the threat the offender poses to the community if released, and whether the offender's release on parole is supported by those agencies.
While each case is assessed on its merits, in circumstances where operational agencies have information which indicates that an offender poses a threat to community safety, it is unlikely that exceptional circumstances can be established and they will not be able to be released on parole.
(g) Parole conditions and ESO conditions
The Committee requested further information around whether a person could be released from prison and be subject to both parole conditions and conditions under an extended or interim supervision order, and if so, how would any conflict between the two be managed.
A person will be eligible for an ESO if they are detained in custody serving a sentence of imprisonment for an eligible offence (proposed new section 105A.3A(1)). As such, if an offender is released on parole, they would no longer be eligible for an ESO as they would no longer be detained in custody.
There are some limited circumstances where it is theoretically possible that a person could be subject to an ESO and bail or parole conditions at the same time. For example, an offender could be released after serving a sentence for an eligible terrorism offence and made the subject of an ESO for a three year period. In the first year of their release, the offender is convicted of a further offence and sentenced to 12 months imprisonment. During this period of imprisonment, the Bill would provide that the order is suspended, which means that the conditions do not apply. This suspension does not affect the expiry date of the order. If the offender was then released on parole, then they would be subject to both parole and the ESO conditions.
Such cases are likely to be infrequent, and will be managed by ensuring that the conditions of parole take into account the fact that the ESO conditions would resume once the person is released from custody. This is similar to the current arrangements where an individual can be subject to state and Commonwealth parole conditions simultaneously. Where this occurs, the Commonwealth Parole Office works with state agencies to manage the offender under both orders.
(h) Terrorist offenders who have received parole
The Committee requested further information about the percentage of persons who have been imprisoned for a terrorism offence under Part 5.3 of the Criminal Code, and who have received parole in the past 10 years.
One terrorist prisoner has been granted parole since October 2012. At the time of his release, he had been in a normal prison environment for many years and was undertaking supervised work outside of the prison. His release on parole was supported by the APP and Corrective Services NSW.
Before October 2012, the Crimes Act 1914 did not provide discretion to refuse to grant parole to any federal prisoners whose head sentences were under 10 years. For example, some of the offenders convicted as a result of Operation Pendennis received sentences that were under 10 years imprisonment and as a result, these offenders were automatically released on parole at the expiry of the non-parole periods set by the sentencing courts.
(i) Current prison services available to manage terrorist offenders
The Committee requested further information regarding whether, how, and to what extent the current prison services available to manage terrorist offenders are not effective in reducing the risk of recidivism with respect to terrorism offences.
The management and rehabilitation of federal terrorist offenders is a state and territory responsibility. The Australian Government has supported the states and territories to implement and develop rehabilitation programs. However, the relatively small number of convicted terrorists who have been released in Australia makes it difficult to obtain statistically valid evaluations of the effectiveness of prison terrorist rehabilitation programs in reducing the risk of terrorism recidivism. Prisoners who are eligible under the HRTO scheme may also have declined to participate in rehabilitation programs, attended but not engaged meaningfully, or may need to undertake further participation in programs beyond their sentence to reduce their risk.
Success in these programs relies on the person's motivation to change and their willingness to re-evaluate their ideology. An offender's successful rehabilitation may also depend on whether they have appropriate family, social and professional supports in the community.
(j) Civil standard of proof for ESOs
The Committee requested further information as to why it is appropriate that the civil standard of proof (balance of probabilities) should be required for the issue of an ESO or ISO, noting the potential significant impact on human rights by the imposition of a supervision order.
The civil standard of proof required for making of an ESO or ISO is appropriately set to the 'balance of probabilities' (which is the same standard of proof for making a control order) to reflect the fact that these orders impose restrictions on an individual's personal liberties that fall short of custody. As such, this standard of proof is lower than the current standard of proof required for making a CDO, which is a high degree of probability. It is also consistent with the standard of proof that ordinarily applies in other civil proceedings.
This standard is appropriate to ensure that the scheme achieves its intended objective of protecting the community from terrorist acts. Any imposition on the offender's rights will be considered by the court as it assesses whether the proposed conditions are reasonably necessary, and reasonably appropriate and adapted for the purpose of protecting the community.
(k) Condition to remain at specified premises for more than 12 hours within any 24 hour period
The Committee requested further information as to whether, as a matter of statutory interpretation, a court could impose a condition that an offender remain at specified premises for more than 12 hours within any 24 hour period, noting that the general conditions listed in proposed subsection 105A.7B(3) are expressly stated as being 'without limiting' a court's ability to impose any condition they were satisfied was necessary (under proposed subsection 105A.7B(l)).
It would be open to a court to impose any condition under an ESO, provided it is satisfied that the condition is reasonably necessary, and reasonably appropriate and adapted.
The possible conditions listed in subsections 105A.7B(3) and 105A.7B(5) do not limit the court's ultimate discretion to impose whatever conditions the court is satisfied are proportionate to the risk posed by the offender. However the specific listing of those conditions are intended to provide some guidelines on the Parliament's views on what may constitute reasonable conditions. The proposed provisions have been framed this way to ensure there is sufficient flexibility to tailor the conditions to the specific risk posed by the offender in the community.
It is relevant to note the safeguards proposed which seek to ensure that any limitations on human rights are proportionate to the legitimate objective of protecting the community from the risk of terrorism. For example, it is open to an offender to apply to the court to vary a condition imposed under the order or to appeal the making of an order.
An offender may also apply to a specified authority for a temporary exemption to a condition, where the court specifies an exemption condition. Requests for exemptions would be considered on a case by case basis, and will depend on a range of factors including the range of conditions currently in place, the individual 's past behaviour, though protection of the community will ultimately be the primary factor. This is similar to the approach taken by the AFP in relation to control orders where exemptions from certain conditions may be issued from time to time to afford sufficient flexibility for the offender in circumstances where the risk to the community would not be increased (for example, compliance with curfew conditions where a person may be working a late night shift). It is envisaged that the consideration of exemptions under the ESO scheme will be similar.
As noted in the Explanatory Memorandum to the Bill, the court may set out the process for seeking an exemption in the terms of the order. For example, the condition may be drafted so the subject is required to provide a certain period of notice. To request an exemption, the offender will need to submit a written request to the specified authority for an exemption to a particular condition, outlining the exemption sought and reasons for seeking an exemption.
Noting that the Supreme Court would have already made a finding that the condition the offender is seeking an exemption from is necessary for the protective purpose of the order, it would not be appropriate to have a requirement to provide reasons for refusing an exemption to the subject as police may have come to this decision based on sensitive or intelligence information.
Exemptions that constitute a substantial variation of the condition would follow the variation process.

Concluding comments

International human rights legal advice

Absolution prohibition on retrospective criminal laws

2.21 Further information was sought as to whether the type of conditions that may be imposed under an extended supervision order may be so severe as to amount to a penalty for the purposes of international human rights law. The Attorney-General advised that extended supervision orders are designed to protect the community and do not serve a retributive or punitive purpose, and so do not have the character of a penalty. The Attorney-General stated that the conditions which may be imposed by a court may be restrictive, but may only be imposed if the court is satisfied that each condition is reasonably necessary, and reasonably appropriate and adapted for the purpose of protecting the community from the unacceptable risk of the offender committing a serious terrorism offence. The Attorney-General further stated that the legislation is designed to ensure that orders are appropriately tailored to protect the community from the specific risk posed by an offender, and that any limitation of the offender's rights is only to the extent necessary to protect the community from the risk of the offender committing a further serious terrorism offence.

2.22 The Attorney-General further explained that it would be open to a court to impose any condition under an extended supervision order, provided it was satisfied that the condition is reasonably necessary, and reasonably appropriate and adapted. The Attorney-General explained that the possible conditions listed in proposed subsections 105A.7B(3)-(5) do not limit the court's ultimate discretion to impose whatever conditions the court is satisfied are proportionate to the risk posed by the offender, although they are intended to provide some guidance on the Parliament's views as to what may constitute reasonable conditions, and to provide sufficient flexibility to tailor the conditions to the specific risk posed by the offender in the community.

2.23 Article 15 of the International Covenant on Civil and Political Rights relevantly provides that no one shall be subject to a heavier penalty than one that applied at the time an offence was committed. As the extended supervision order scheme only applies to persons who have already been convicted and sentenced for a specified criminal offence, it is necessary to consider if an additional penalty is being imposed on those persons by this measure. Under international human rights law, in assessing whether a measure constitutes a 'penalty', it is necessary to consider:

(a) whether the measure in question is imposed following conviction for a criminal offence;

(b) the domestic classification of the measure;

(c) the nature and purpose of the measure;

(d) the severity of the penalty; and

(e) the procedures involved in the making and implementation of the measure.^[57]

2.24 In relation to (a), the extended supervision order is imposed only in relation to those who have been convicted of specified offences. In relation to the domestic classification of the measure, the scheme is treated as protective, as opposed to punitive, and is thus non-criminal under Australian domestic law. However, the notion of a 'penalty' has an autonomous meaning in international human rights law, and it is necessary to go beyond appearances and assess whether a particular measure amounts in substance to a 'penalty' within the context of a retrospective criminal penalty.^[58] Consequently, the domestic classification of the measures, while relevant, is not determinative.

2.25 In relation to the nature and purpose of the measure, a measure will likely be considered criminal under international human rights law if it is intended to punish and deter. In this respect, the extended supervision order scheme is clearly intended to deter people who have been convicted of a terrorism offence from engaging in similar future conduct.

2.26 As to the severity of the measure, the Attorney-General has advised that, on being satisfied that an unacceptable risk of the individual committing a terrorism offence exists, a court could impose any condition which it is satisfied is reasonably necessary, and reasonably appropriate and adapted to protect the community from that unacceptable risk. It would appear that some potential conditions which could be imposed under an extended supervision order (for example, that the person may not contact a particular friend) may not rise to the level of severity such that they would be considered a criminal penalty under international human rights law. However, it would also appear that a court could impose conditions that may be so severe as to be regarded as a criminal penalty under international human rights law. In particular, while the bill proposes that a reasonable condition may involve a requirement that a person remain at specified premises for up to 12 hours a day, the Attorney-General explained that this would not constrain the court from requiring that a person remain at specified premises for longer than this. Consequently, as a matter of statutory interpretation, there is a risk a court could require that, in order to address the unacceptable risk of a person engaging in terrorist conduct, they must remain at specified premises for 24 hours a day. Such a condition would amount to a deprivation of liberty under international human rights law,^[59] and the United Nations Human Rights Committee has explained that this would constitute a criminal penalty under international human rights law.^[60] This means that there is a risk that some particular conditions which could, as a matter of statutory interpretation, be imposed under an extended supervision order, may be so severe as to be considered to amount to a criminal penalty under international human rights law.

2.27 In relation to the procedures involved in the making and implementation of the measure, an extended supervision order may only be sought by application to a court. A judge must be satisfied on the balance of probabilities that the person poses an unacceptable risk of engaging in a future terrorist offence. They must then be satisfied, with respect to every proposed condition, that each condition is reasonably appropriate and reasonably necessary and adapted to address that risk. Given that the measures would only be imposed based on an assessment of the facts of each individual case (as opposed to a standardised sanction) this tends to indicate that the measures may be regarded as penal.^[61]

2.28 In relation to the retrospective application of this measure, the Attorney-General advised that there is a growing cohort of convicted terrorist offenders who have been released into the community following the end of their custodial sentences, with 12 offenders due to be released between November 2020 and 2025. The Attorney-General further stated that it is essential that Australia's counter-terrorism framework effectively manages the risk posed by this cohort. As to why it is appropriate to apply the extended supervision order scheme to those who committed offences before this scheme (or the continued detention order scheme) was in operation, the Attorney-General stated that the scheme has been specifically designed and tailored to address the risk posed by high risk terrorist offenders who have committed, and been convicted of, a serious terrorism offence. The Attorney-General stated that, due to the protective as opposed to the punitive character of an extended supervision order, it is appropriate to apply the scheme retrospectively.

2.29 The Attorney-General has explained that the extended supervision order would operate with respect to terrorist offenders who are currently in prison. That is, people who have already engaged in criminal conduct, and been sentenced for that conduct. In such cases, the extended supervision order would be operating in a retrospective way, because it would be exercised in response to conduct which took place before the law existed.

2.30 On this basis there is a risk that an extended supervision order could be made in relation to a person who had engaged in terrorist conduct before the scheme existed where the conditions of the order were so severe (particularly if it involved home detention for long periods) that this may be regarded as a criminal penalty under international human rights law. As such, the measure risks being incompatible with the absolute prohibition on retrospective criminal laws.

Multiple rights

Prescribed by law

2.31 In addition, the proposed introduction of an extended and interim supervision order scheme further engages and may limit a number of human rights, the rights to liberty, freedom of movement, a private life, protection of the family, freedom of expression, assembly and association, and the right to work. These rights may be subject to permissible limitations where the limitation is prescribed by law, pursues a legitimate objective, is rationally connected to that objective and is a proportionate means of achieving that objective.

2.32 In determining whether the extended supervision order would satisfy the requirement that a limitation on rights must be prescribed by law, it must be determined whether the law is sufficiently certain such that people understand the legal consequences of their actions or the circumstances under which authorities may restrict the exercise of their rights.^[62] In this regard, further information was sought as to what factors a court would consider in determining whether a person poses an 'unacceptable risk' in the context of a court assessing a person's level of future risk under the proposed supervision order scheme, and what threshold a court would apply in determining whether a risk is an acceptable or unacceptable one.

2.33 The Attorney-General noted that in determining that the offender poses an unacceptable risk, the court must have regard to a range of matters as set out in section 105A.6B, and any other matter the court considers relevant. This includes considering any assessment report from a relevant expert; reports regarding the extent to which the offender can reasonably and practicably be managed in the community; any rehabilitation or treatment programs; the level of the offender's compliance with any obligations while on parole, or subject to a post-sentence or control order; the offender's history of prior convictions; and the views of the sentencing court at the time any sentence was imposed.

2.34 The Attorney-General advised that it would be a matter for the court to assess, on a case-by-case basis, whether the risk an offender poses is unacceptable. This would likely be informed by: information which demonstrates the likelihood of the offender being at risk of committing a terrorism offence; the gravity of that potential offending; and potentially a court's experience with similar supervisory schemes. The Attorney-General also noted that the court could appoint an independent expert to help inform its decision about the risk posed by an offender. The Attorney-General further noted that, in determining what would constitute an unacceptable risk, the courts in New South Wales consider both the degree of likelihood of the risk being realised and the extent of harm which might result from that realisation.

2.35 The 'unacceptable risk' test currently operates in other areas of law. For example, the Bail Act 2013 (NSW) provides that a bail authority may refuse to grant bail if satisfied that there is an unacceptable risk that the person will engage in specified conduct if released, including committing a serious offence.^[63] In this context, courts appear to have interpreted the unacceptable risk test to require an assessment of whether the risks associated with the release of a person can be mitigated by the imposition of strict conditions.^[64] The term has also been used by courts in assessing a risk of child abuse by parents, and corresponding decisions around parental access to children, although the High Court in particular has not offered a precise definition of the term, instead cautioning against 'striving for a greater degree of definition than the subject is capable of yielding'.^[65] These have some use in terms of understanding how a court may interpret the phrase in this context, as do the matters the court must have regard to when determining whether to make such an order. However, it is noted that for the purposes of international human rights law, the quality of law test requires that any measures which interfere with human rights must be sufficiently certain and accessible, such that people can understand the circumstances under which authorities may restrict the exercise of their rights. In this regard, some questions remain as to whether the distinction between an 'acceptable' risk, as opposed to an 'unacceptable risk' of engaging in future terrorist conduct, is sufficiently clear such that an individual could adduce evidence to a court demonstrating that they do not pose an unacceptable risk, and understand where that threshold lies.

Legitimate objective

2.36 Further information was sought as to what evidence there is of a pressing and substantial concern to which the proposed extended and interim supervision order scheme is directed (including numbers of terrorism offenders in Australia who have been released from prison and re-offended).

2.37 The Attorney-General stated that the current threat level for terrorist acts is at 'probable', meaning that credible intelligence indicates that individuals or groups possess an intention and capability to conduct a terrorist attack in Australia. He stated that although Australia has not experienced an attack such as those carried out in the United Kingdom in 2019 and 2020 (by convicted terrorist offenders who had been released), there is nevertheless a specific risk posed by released offenders in Australia who can be highly radicalised and motivated. The Attorney-General noted that between January and October 2020, nine convicted terrorist offenders were released in the community, and 12 offenders are due to be released between November 2020 and 2025, and that as a cohort, these offenders pose a risk. The Attorney-General also stated that the small numbers of convicted violent extremists who have been released and have subsequently offended does not provide a large enough sample for statistical analysis.

2.38 As previously noted, addressing a risk of future harm to the community posed by persons convicted of terrorism offences would likely be capable of constituting a legitimate objective for the purposes of international human rights law. However, some questions remain as to whether there is currently a pressing or substantial concern that requires addressing in Australia, noting that the information provided only states that the risk exists, and that those convicted of terrorism offences have recently been, or are soon due to be, released from prison, and does not point to specific evidence establishing the extent of the risk posed by such individuals.

Rational connection

2.39 Further information was sought as to whether expert assessments of the risk of a person engaging in future terrorism related conduct can accurately assess such risks, and consequently whether the imposition of an extended supervision order would be rationally connected with the objective of protecting the public from terrorist acts.

2.40 The Attorney-General explained that expert assessors provide the court with an assessment of the person's risk of engaging in future terrorist acts based on: the person's offending history and past conduct; their behaviour in custody, including behaviours indicating maintenance of, or disengagement from, violent extremist beliefs; their participation in rehabilitation programs; their plans on release from custody, including relating to family and social networks; and a structural psychological assessment of the person using the Violent Extremism Risk Assessment Tool 2 Revised (VERA-2R) and other appropriate assessment instruments. The Attorney-General explained that the expert's assessment is based on factual information provided to the expert and information gained from interviewing the person. The Attorney-General advised that the VERA-2R does not claim predictive validity, but assists the assessor to identify and explore risk and protective factors that should be addressed to reduce the subject's risk of reoffending. The

Attorney-General further noted that the VERA-2R has been designed such that the offender's participation in an assessment is not required in order for an assessment to be made, and also: permits the measurement of longitudinal change in offender risk over time, and supports experts to explore scenarios which might increase or reduce a risk of reoffending. The Attorney-General stated that the VERA-2R mechanism could, therefore, inform the court as to whether an extended supervision order may address a risk, and what conditions may reduce any such risk.

2.41 The Attorney-General further advised that instruments such as VERA-2R are used to inform an expert's assessment, and do not themselves produce a standalone risk assessment or prediction, and further noted that a court must consider other matters beyond the report of an assessment, and that it is a matter for the court as to how much weight it chooses to afford an assessment.

2.42 This information is useful in assessing whether expert assessments may be accurate in predicting a person's potential future risk of engaging in terrorist conduct, and in informing the court when deciding whether to make an extended supervision order. It is noted that in comparing different tools for assessing the risks of recidivism among terrorist offenders in 2019, the International Centre for Counter-Terrorism in the Hague noted that Structured Professional Judgment tools such as the VERA-2R may be effective as an aid or basis for decision-making, but it 'does not mean much more than structuring the common sense and intuition of professionals to support their judgments'.^[66] It would appear that an assessment by an expert, which may include an evaluation in accordance with the VERA-2R tool, may be capable of assisting in identifying instances in which there is a real risk of recidivism by a convicted terrorist offender. However, there may be significant challenges in retrospectively assessing the accuracy of expert assessments, noting that it may not be possible to distinguish between persons who left prison subject to an extended supervision order and never intended to undertake a further terrorist act, and those persons who would have engaged in future terrorist conduct but for the imposition of conditions under an extended supervision order.

Proportionality

2.43 In assessing the proportionality of a proposed limit on a human right, it is necessary to consider whether the proposed limitation is sufficiently curtailed. This requires consideration of any safeguards, the availability of independent oversight and external review, and the capacity for a proposed scheme to operate flexibly and treat different cases differently. In relation to the extent of the conditions that may be imposed under an extended supervision order, and therefore the proportionality of the measure, information was sought as to whether, as a matter of statutory interpretation, proposed section 105A.7B places any limitation on the court's discretion to impose conditions under an extended supervision order. As discussed above at paragraph [2.24], the Attorney-General advised that the suggested extended supervision order conditions provide guidance as to the Parliament's views as to what may constitute reasonable conditions, but do not constrain the court's power to impose any condition which it is satisfied is reasonably necessary, and reasonably appropriate and adapted for the purpose of protecting the community from the unacceptable risk of a terrorist act being committed. As such, it would appear that the only constraints on a court's ability to make orders of any kind with respect to an individual would be the assessment of whether those orders are necessary, appropriate and adapted to protect the community from the unacceptable risk of a person engaging in a te[67]orist act.⁶⁷ Proposed subsection 105A.7B(3) provides that the conditions a court may impose include that the offender remain at specified premises between specified times or days, and also states 'but for no more than 12 hours within an[68]24 hours'.⁶⁸ However, noting that proposed subsection 105A.7B(3) also provides that this qualification is 'without limiting' the overall section which allows for any reasonable conditions to be imposed, and noting the Attorney-General's advice that this does not limit the court's ultimate discretion, it would appear that it would be open to a court to order the home detention of a person for up to 24 hours a day, if it were considered reasonably necessary, and reasonably appropriate and adapted in that particular case. It is not clear that such conditions would be proportionate to the objective sought to be achieved, particularly noting that the scheme is based on the risk of future offending, and not punishment for past conduct.

2.44 In relation to the safeguards available in the bill, the Attorney-General noted that an individual may apply to the court for variation of a condition, as well as seeking a temporary exemption from a condition from a specified authority. In terms of assessing requests for a temporary exemption, the Attorney-General stated that the outcome will depend on a range of factors including the range of conditions currently in place and the individual's past behaviour, although protection of the community will ultimately be the primary factor. The Attorney-General stated that no written reasons would be provided for a decision to refuse an exemption, because the reasons may be based on sensitive or intelligence information. The capacity to seek a variation of a condition, or a temporary exemption, may assist with the proportionality of the measure. However, it is noted that variations are unlikely to be granted for personal reasons if the court determines that the condition is still reasonably appropriate and adapted for the purposes of protecting the community. In addition, having to apply to a specified authority (such as a police officer) for a temporary exemption in order to do specified things (such as attend medical appointments), itself limits a person's right to privacy, with the possibility of many day-to-day, and highly personal, decisions needing to be approved by another authority. Further, there may be circumstances in which the individual faces difficulties adducing evidence that they no longer pose a risk, or pose less of a risk, of engaging in further terrorist conduct. In addition, the bill provides no guidance on when, and on what criteria, a specified authority may grant or refuse the exemption. As such, the specified authority is given an absolute discretion to refuse the exemption. There is also no timeframe by which a decision must be made and the bill does not require the specified authority to provide reasons for a decision.^[69] The only remedy which a person could seek would be seeking a variation of the condition (through the courts) where an exemption is refused.^[70] In addition, while the capacity to appeal an extended supervision order, or seek to vary a condition, may have the capacity to serve as a safeguard, this could be significantly limited by restrictions on accessing evidence associated with the order, as discussed in detail below at paragraphs [2.72] to [2.76]. Noting these limitations, the ability of a person to apply for exemptions and variations to the order does not appear to offer an effective safeguard to protect the person's human rights.

2.45 Further information was sought as to why it is appropriate that the civil standard of proof (balance of probabilities) should be required for the issue of an extended or interim supervision order, noting the potential significant impact on human rights by the imposition of a supervision order. This is in contrast to the 'high degree of probability' standard required in the case of a continuing detention order.^[71] The Attorney-General stated that this reflects the fact that the extended supervision orders impose restrictions on an individual's personal liberties which fall short of custody. The response also noted that any imposition on the offender's rights will be considered by the court as it assesses whether the proposed conditions are reasonably necessary, and reasonably appropriate and adapted for the purpose of protecting the community. The Attorney-General further stated that the lower standard is appropriate to ensure that the scheme achieves its intended objective of protecting the community from terrorist acts.

2.46 However, while it is recognised that an extended supervision order does not amount to a deprivation of liberty in the same way as remaining imprisoned under a continuing detention order does, as set out above, the impact on human rights could be quite considerable, depending on the conditions imposed. To make an extended supervision order a court must first be satisfied that there is an unacceptable risk of the person engaging in a terrorist offence, and that any conditions are to protect the community from that unacceptable risk. This suggests that the conditions imposed may need to be stringent in order to protect the public, and could necessitate monitoring and supervision, or otherwise limit a person's liberty, in order for them to fulfil the stated purpose. As set out above, a court could impose an extended supervision order that resulted in the home detention of a person for many hours a day, which may amount to a deprivation of liberty. In addition, it would appear that there would be no limit as to the number of conditions which could be imposed under a single order. Given the potential impact on human rights that could be imposed under an extended supervision order, it would not appear that the civil standard of proof (that it is more likely than not that an offender would pose an unacceptable risk) constitutes a sufficient safeguard to protect the rights limited by this scheme.

2.47 Further information was also sought regarding parole, and why, and in what respects, the power to release an offender on parole during the final quarter of their sentence (subject to conditions) would not be effective to protect the public from any potential risk sought to be addressed by these measures, including by supporting a person to rehabilitate and reduce their risk of recidivism. The Attorney-General advised that an extended supervision order would not generally be able to be made in relation to a person released on parole,^[72] and that parole is rarely used in relation to those convicted of terrorism offences.^[73] The Attorney-General also advised that, while parole allows for the conditional release of offenders to serve the remainder of their prison sentence in the community, it does not provide an effective means to protect the public from the threat posed by high risk terrorist offenders at the end of their sentences. He noted that parole conditions may only apply for the duration of the offender's sentence, whereas an extended supervision order could apply after their sentence had ended, and continue to be available successively to manage 'the enduring risk' that an offender may pose following their release. It is noted that a less rights restrictive approach may be to not have a presumption against parole, to allow stringent conditions to be imposed while a person serves their original sentence, and then if it is still considered necessary to impose an extended supervision order, to allow an application for such an order at that point. It is also noted that the Attorney-General's response, in referring to managing the 'enduring' risk that an offender poses, appears to indicate that it is intended that extended supervision orders may continually be made, which may effectively subject a person to this scheme indefinitely, which calls into question the proportionality of this measure.

2.48 Finally, further information was also sought as to whether, how, and to what extent the current prison services available to manage terrorist offenders are not effective in reducing the risk of recidivism with respect to terrorism offences. The Attorney-General advised that, with the support of the federal government, states and territories have responsibility for the management and rehabilitation of federal terrorist offenders.^[74] The Attorney-General stated that individual success in these programs relies on the person's motivation to change and their willingness to

re-evaluate their ideology, and that an offender's successful rehabilitation may also depend on whether they have appropriate family, social and professional supports in the community. The response stated that prisoners who are eligible under the High Risk Terrorism Offenders scheme may also have declined to participate in rehabilitation programs, attended but not engaged meaningfully, or may need to undertake further participation in programs beyond their sentence to reduce their risk. The Attorney-General further advised that the small number of convicted terrorists who have been released in Australia makes it difficult to obtain statistically valid evaluations of the effectiveness of prison terrorist rehabilitation programs in reducing the risk of terrorist recidivism. In the absence of comprehensive information as to whether prison services, including those developed specifically to reduce the risk of recidivism among terrorist offenders, are available and effective to de-radicalise or otherwise rehabilitate terrorist offenders, it is difficult to make a conclusive finding as to the extent to which such services provide an effective less rights restrictive alternative to a post-sentence extended supervision order.

Concluding observations

2.49 As was noted in the initial analysis, the proposed supervision order scheme fundamentally inverts basic assumptions of the criminal justice system: that persons may only be punished on the basis of offences, the existence of which has been proven beyond reasonable doubt. This bill proposes that persons who have committed offences and have completed their sentences for those offences may continue to be subject to coercive and invasive supervisory measures, because, on the balance of probabilities (that is, it being more likely than not), the offender poses an 'unacceptable risk' of committing a terrorism offence in the future. This inverts a fundamental assumption of democratic systems of criminal law: that a person should not be punished for a crime which they may commit in the future. The United Nations Human Rights Committee has strongly cautioned against punishing a person again after their initial punishment has concluded, based on an assessment of possible future risk, stating:

The concept of feared or predicted dangerousness to the community applicable in the case of past offenders is inherently problematic. It is essentially based on opinion as distinct from factual evidence, even if that evidence consists in the opinion of psychiatric experts... While Courts are free to accept or reject expert opinion and are required to consider all other available relevant evidence, the reality is that the Courts must make a finding of fact on the suspected future behaviour of a past offender which may or may not materialise.^[75]

2.50 The Attorney-General has indicated that this scheme would operate with respect to terrorist offenders who are currently in prison, and noted that 12 such persons are due to be released between now and 2025. Where the extended supervision order would operate with respect to terrorist offenders who are currently in prison, it would be operating in a retrospective way (that is, it would be exercised in response to conduct which took place before the law existed). In such cases, if a condition imposed under an extended supervision order (or a series of conditions) was so severe such that it would be regarded as a criminal penalty under international human rights law, this would violate the prohibition on retrospective criminal laws. This is an absolute right and may not be permissibly limited. As the bill provides no limit on the type of conditions that a court may impose, other than that they must be reasonably necessary and appropriate and adapted for the purpose of protecting the community from the unacceptable risk of the offender committing a future terrorist offence, there is a risk that the conditions may be so severe as to amount to a penalty. This is particularly the case if the court were to order long periods of home detention. As such, as currently drafted, there is a risk that this measure may not be compatible with the absolute prohibition against retrospective criminal laws.

2.51 In addition, the proposed extended supervision order scheme would establish a broad discretion for a court to impose any conditions which it considered, on being satisfied that the person posed an unacceptable risk of engaging in terrorist conduct, were reasonably necessary and reasonably appropriate and adapted to protect the community from that risk. Consequently, the scheme may engage and limit a number of other human rights. These rights may be permissibly limited where such a limitation is: prescribed by law; seeks to achieve a legitimate objective; is rationally connected to (that is, effective to achieve) that objective; and is a proportionate means of doing so.

2.52 As set out above, while it may generally have been established that the measure is prescribed by law, seeks to achieve a legitimate objective and is rationally connected to that objective, some questions remain: whether the threshold that a person poses an 'unacceptable risk' of engaging in future terrorist conduct is sufficiently certain; whether there is an issue of public or social concern that is pressing and substantial enough to warrant limiting the rights; and how the accuracy of any assessments of future risk may, in practice, be determined.

2.53 In relation to whether, taken as a whole, the extended supervision order scheme would be a proportionate means of addressing its stated objectives, it does not appear that applying the civil standard of proof (on the balance of probabilities) would be proportionate, noting the Attorney-General's advice that a court could impose any conditions which it was satisfied (also on the balance of probabilities) were reasonably necessary, and reasonably appropriate and adapted to protect the community from the unacceptable risk of a person engaging in terrorist conduct. The civil standard of proof is a substantially lower threshold to be met than the comparable 'satisfied to a high degree of probability' that applies in relation to continuing detention orders. In addition, it appears that the existing capacity to release an offender on parole, including subject to strict conditions, is rarely utilised with respect to terrorist offenders, and it remains unclear as to whether prison services designed specifically to de-radicalise terrorist inmates and reduce the risk of recidivism are effective, or not (such that the introduction of a post-sentence scheme such as this is necessary). Other matters which raise concerns from the perspective of proportionality include the fact that extended supervision orders, while limited to a maximum of three years in duration, could be sought consecutively without limit. Further, it is not clear that the capacity to apply for a variation of an order, and to seek a temporary exemption from a condition, would provide practical flexibility such that these could operate as safeguards in practice, and assist in the proportionality of the measure.

2.54 As such, it would appear that there is a significant risk that the extended supervision order scheme could impermissibly limit multiple human rights, including the rights to liberty, freedom of movement, a private life, protection of the family, freedom of expression, assembly and association, and the right to work.

Committee view

2.55 The committee thanks the Attorney-General for this response. The committee notes that the bill seeks to establish a post-sentence extended supervision order scheme for high-risk terrorist offenders, which would enable a court to impose any conditions on a person that it is satisfied on the balance of probabilities are reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the community from the unacceptable risk of the offender committing a serious terrorism offence. The committee recognises that this constitutes an important safeguard against the imposition of unreasonable or inappropriate conditions on a person.

2.56 To the extent that a supervision order may have the effect of protecting the public from harmful acts, the committee considers that this scheme promotes the right to life and security of the person. In the context of high-risk terrorist offenders, the committee recognises that the government has a critically important role in protecting the community from the catastrophic harm which could be caused by a large scale terrorist attack in Australia. The committee also notes that the introduction of extended supervision orders would constitute a less rights-restrictive alternative to the existing continuing detention order scheme, as an individual subject to a supervision order would not be subject to continued imprisonment. In this respect, the committee notes that these measures may promote the right to liberty.

2.57 The committee notes that given the breadth of potential conditions which could be imposed under a supervision order, extended supervision orders also engage a number of human rights. The committee notes that most human rights may be permissibly limited if it is shown to be reasonable, necessary and proportionate.

2.58 In relation to the absolute prohibition on retrospective criminal law, the committee notes the Attorney-General's advice that extended supervision orders are designed to protect the community and do not serve a retributive or punitive purpose, and so do not have the character of a penalty. However, the committee also notes the legal advice that the notion of a 'penalty' has an autonomous meaning in international human rights law, and it is necessary to look beyond the description of a measure to its substantive character, and assess whether a particular measure amounts in substance to a 'penalty'. In this regard, the committee considers that the imposition by the court of many conditions under an extended supervision order would not be so severe as to amount to a penalty. However, the committee notes that should a court order the home detention of a person for long periods of time, this deprivation of liberty may risk amounting to a penalty, which in such circumstances risks being incompatible with the absolute prohibition on retrospective criminal laws.

2.59 In relation to other human rights that may be limited by this bill, the committee considers it has generally been established that the measure is prescribed by law, seeks to achieve the legitimate objective of addressing a risk of future harm to the community posed by persons convicted of terrorism offences, and is rationally connected to that objective. In relation to the proportionality of the measure, the committee notes the Attorney General's advice as to why it is appropriate to apply the civil standard of proof; the safeguards available to seek to vary an extended supervision order or to be exempted from specified conditions; and the matters a court must consider before making an extended supervision order. The committee also notes the legal advice as to the concerns about the civil standard of proof in relation to the court imposing any number of conditions which it was satisfied is reasonably necessary, and reasonably appropriate and adapted to protect the community from the unacceptable risk of the person engaging in terrorist conduct (which could include home detention).

2.60 However, it is the committee’s view that if the court was required to adopt a higher burden of proof such as being 'satisfied to a high degree of probability' which currently applies in relation to continuing detention orders, this could constrain the court from making appropriate supervision orders which adequately protect the community, a key concern of the Attorney-General.

2.61 The committee draws these human rights concerns to the attention of the minister and the Parliament.

Withholding of certain evidence from the offender

2.62 The bill sets out the requirements for providing offenders and their legal representatives with a copy of applications and materials where the AFP minister (or their legal representative) applies to the court in relation to a supervision order.^[76] However, it also sets out mechanisms whereby sensitive information may be excluded from applications or materials where the information is national security information, subject to a claim of public interest immunity, or is terrorism material.^[77]

2.63 In particular, proposed section 105A.14B provides that the AFP minister (or their legal representative) is not required to include in the application or material given to a terrorist offender, any information where the AFP minister is likely to seek to refuse disclosure of the information under the National Security Information (Criminal and Civil Proceedings) Act 2004 (National Security Information Act).^[78] Schedule 1^[79] also seeks to amend the National Security Information Act to prevent the disclosure of information relating to interim or extended supervision order proceedings where such disclosure is likely to prejudice national security (except to the extent that preventing the disclosure would seriously interfere with the administration of justice).^[80]

2.64 This would enable a court to make special orders allowing the court to consider information which is not disclosed to the offender or their legal representative,^[81] including in proceedings relating to an application for a supervision order, or for variation or review of a supervision order, or an application for a continuing detention order where the court considers whether to make an extended supervision order instead. Where the National Security Information Act has been invoked, the court may hold a closed hearing, which the offender and their legal representative could be excluded from,^[82] to address whether disclosure of the information in question would be potentially prejudicial to national security, and whether to allow a witness to be called.^[83] The court could then order that it may consider information which has not been disclosed to the offender or their legal representative as part of the substantive proceedings.^[84]

2.65 In determining whether to make such an order, the court must be satisfied that the offender has been given sufficient information about the allegations to enable effective instructions to be given in relation to those allegations, taking into consideration: the risk of prejudice to national security if an order were not made; whether an order would have a substantial adverse effect on the substantive hearing in the proceeding; and any other matter the court considers relevant.^[85] The individual and their legal representative could be excluded from both the initial closed hearing and the substantive extended supervision order hearing where information which the individual has been excluded from seeing is being considered by the court. In such instances, the court may appoint a 'special advocate' to represent the interests of the offender by making submissions, adducing evidence and cross-examining witnesses.^[86] The explanatory memorandum explains that a special advocate is a security-cleared lawyer or former judge.^[87]

Preliminary international human rights legal advice

Right to a fair hearing

2.66 The capacity to restrict the subject of an application for an extended or interim supervision order from accessing evidence which may nevertheless be used against them, or from being able to appear at a hearing regarding the admissibility of such evidence, engages and may limit the right to a fair hearing.

2.67 The right to a fair hearing applies to both criminal and civil proceedings, to cases before both courts and tribunals, and extends to the pre-trial stages of substantive proceedings.^[88] It is concerned with procedural fairness, and encompasses notions of equality in proceedings, the right to a public hearing and the requirement that hearings be conducted by an independent and impartial body. The ability to test evidence on which allegations are based is a fundamental component of the right to a fair hearing. Limitations on the right to a fair hearing are permissible where the measures pursue a legitimate objective and are rationally connected with and proportionate to that objective.

2.68 Further information is required in order to assess the compatibility of these proposed measures with the right to a fair hearing, and in particular:

(a) noting the potential significant impact on human rights by the imposition of a supervision order, why it is appropriate that a court considering a supervision order should have different powers to admit evidence, which the offender may not have had a sufficient opportunity to challenge, than those applicable in continuing detention order proceedings;

(b) when will sufficient information be provided to an offender in order to allow them to give effective instructions to a special advocate, and will this information be given before restrictions are placed on communication with the special advocate; and

(c) will there be circumstances in which a special advocate will not be appointed where a court is considering whether to admit evidence which has not been provided to an offender or their legal representative.

2.69 The full initial analysis is set out in Report 11 of 2020.

Committee's initial view

2.70 The committee noted that these measures engage and may limit the right to a fair hearing. This right may be permissibly limited if it is shown to be reasonable, necessary and proportionate.

2.71 The committee considered these measures seek to achieve the legitimate objective of protecting Australia's national security, as the inappropriate disclosure of national security information has the potential to prejudice Australia's national security and the security of all Australians. The committee noted that where a court has ordered a closed hearing, there is a process whereby a special advocate may be appointed where the offender is not able to receive certain highly sensitive information, and that the offender will be given sufficient information about the allegations to enable instructions to be given in relation to those allegations. However, the committee noted that questions remain as to the adequacy of these safeguards.

2.72 In order to form a concluded view on these matters, the committee sought the Attorney-General's advice as to the matters set out at paragraph [2.68].

Attorney-General's response

2.73 The Attorney-General advised:

Court-only evidence and the special advocates scheme
(a) Court-only evidence in CDO and ESO proceedings
The Committee requested further information regarding why it is appropriate that a court considering an ESO should have different powers to admit evidence, which the offender may not have had a sufficient opportunity to challenge, than those applicable in CDO proceedings.
The Bill would amend the National Security Information (Criminal and Civil Proceedings) Act 2004 (NSI Act) to extend the court-only evidence provisions which currently apply in control order proceedings to ESO proceedings. Court-only evidence is only available for control orders and ESOs, as these orders allow for supervision rather than detention. These are exceptional provisions and would only be used in exceptional circumstances, where it is absolutely necessary to present highly sensitive information to a court to support an application. It is not appropriate for court-only evidence to be available for CDOs, given the result of such an order is the continued detention of an offender for a period of time following the end of their custodial sentence.
The Bill also amends the NSI Act to ensure that special advocates, which are available where court-only evidence is considered in control order proceedings, will also be available where court-only evidence is considered in ESO proceedings. As noted in the Explanatory Memorandum to the Bill, a special advocate represents the offender's interests during the parts of a hearing from which the offender and their ordinary legal representative are excluded when the court agrees to consider highly sensitive court-only evidence. The special advocate is able to make arguments to the court querying the need to withhold information from the offender, and can challenge the relevance, reliability and weight accorded to that information. The appointment of a special advocate ensures that the offender will have a reasonable opportunity to present their case and challenge the arguments adduced by the other party.
(b) Instructing a special advocate
The Committee requested further information about when sufficient information could be provided to an offender in order to allow them to give effective instructions to a special advocate, and will this information be given before restrictions are placed on communication with the special advocate.
Before making an order to allow for court-only evidence, the court must be satisfied that the offender has been given sufficient information about the allegations on which the request for an order was based to enable effective instructions to be given in relation to those allegations.
Whether the offender is provided the 'sufficient information' prior to the special advocate seeing the sensitive national security information will depend on the circumstances of the case. The offender will be given sufficient information about the allegations such that they can instruct their ordinary legal representative, and special advocate in relation to those allegations, prior to the special advocate having seen the sensitive national security information.
However, there may be some circumstances in which further information is disclosed to the offender after the special advocate has seen the sensitive national security information. Under these circumstances, the communication restrictions under the NSI Act would apply, requiring the special advocate to seek the approval of the court for any proposed communications to the offender. The offender can continue to communicate with the special advocate about any matter connected with the proceeding in writing through their ordinary legal representative without restriction. This allows the offender to provide information to the special advocate that the offender considers relevant in relation to the allegations on which the request for an order was based.
(c) Court's appointment of a special advocate
The Committee requested further information regarding whether there will there be circumstances in which a special advocate will not be appointed where a court is considering whether to admit evidence which has not been provided to an offender or their legal representative.
The appointment of a special advocate is at the discretion of the court, which is best placed to assess whether a special advocate is necessary to assist the court process and safeguard the rights of the offender in proceedings. In some instances, the court may consider itself sufficiently equipped to safeguard the rights of the offender without the appointment of a special advocate. It is appropriate that that decision be made on a case by case basis.

Concluding comments

International human rights legal advice

Right to a fair trial

2.74 As noted in the initial analysis, withholding certain evidence from an offender in an application for an extended supervision order seeks to achieve the legitimate objective of protecting national security and investigations, and the measures may be rationally connected to that objective. The Attorney-General has provided further information relevant to the assessment of the proportionality of the provisions. With respect to the capacity to withhold certain evidence from an offender, the Attorney-General advised that the extension of court-only evidence provisions to extended supervision order proceedings are exceptional provisions and would only be used in exceptional circumstances, where it is absolutely necessary to present highly sensitive information to a court to support an application. The Attorney-General advised that court-only evidence is available for extended supervision orders as these orders allow for supervision rather than detention, whereas they are not available in the case of continuing detention orders, as these orders enable the continued detention of an offender for a period of time following the end of their custodial sentence. However, as set out above at paragraph [2.41], there is no limit on the conditions that a court may impose under an extended supervision order, other than that the court considers the measure reasonably necessary, and appropriate and adapted for the purpose of protecting the community from the unacceptable risk of the person committing a terrorist offence. As such, it would appear that it would be open to a court to order the home detention of a person for many hours a day, if it were considered reasonably necessary, and reasonably appropriate and adapted in the particular case. As such, it is not clear that it would be appropriate to allow for court-only evidence in cases that could lead to the effective detention of a person subject to the order.

2.75 The Attorney-General noted that before making an order to allow for court-only evidence, the court must be satisfied that the offender has been given sufficient information about the allegations on which the request for an order was based to enable effective instructions to be given in relation to those allegations.^[89] Once a court makes a closed-hearing order this would have the effect of excluding the terrorist offender, and their legal representative, from part of the hearing relating to whether an extended supervision order is made against them. In such circumstances, it is open to the court to appoint a person as a special advocate to represent the offender's interests at the hearing.^[90] As to whether there may be cases in which no special advocate is appointed, the Attorney-General advised that the court may, in some instances, consider itself sufficiently equipped to safeguard the rights of the offender without the appointment of a special advocate, and that it is appropriate that that decision be made on a case by case basis. As such, there may be circumstances in which evidence is relied on by a court in making an extended supervision order that has not been able to be subjected to challenge by the offender or their representative.

2.76 In addition, where a special advocate has been appointed, the ability of an offender to communicate with the special advocate would appear to be restricted. The National Security Information Act provides that before a special advocate is given national security information there is no general restriction on the communication between the advocate and the offender. However, it also provides that the court may restrict such communication if satisfied it is in the interests of national security to do so and it is not inconsistent with the Act.^[91] The

Attorney-General has advised that whether the offender is provided with 'sufficient information' prior to the special advocate seeing the sensitive national security information will depend on the circumstances of the case. The Attorney-General has advised that the offender will be given sufficient information about the allegations such that they can instruct their special advocate in relation to those allegations, prior to the special advocate having seen the sensitive national security information, but that there may be some circumstances in which further information is disclosed to the offender after the special advocate has seen the sensitive national security information. Under these circumstances, the special advocate would be required to seek the approval of the court for any proposed communications to the offender,^[92] although the offender could continue to communicate with the special advocate about any matter connected with the proceeding in writing through their ordinary legal representative without restriction. The Attorney-General stated that this would allow the offender to provide information to the special advocate that the offender considers relevant in relation to the allegations on which the request for an order was based. However, in circumstances where the restricted information is central to the basis of the order, the offender is only able to communicate with the special advocate in writing via their legal representative,^[93] and the special advocate can only correspond with them in writing and with the prior approval of the court,^[94] it would appear that providing adequate instructions with respect to the restricted information could be very difficult.

2.77 As noted in the initial analysis, the United Nations Human Rights Committee has explained that the right to a fair hearing requires that each side to a matter be given the opportunity to contest all the arguments and evidence adduced by the other party,^[95] and that arguments must be open to challenge by the parties.^[96] With respect to the use of special advocates, the European Court of Human Rights has found that a hearing will not be fair ‘unless any difficulties caused to the defendant by a limitation on his rights are sufficiently counterbalanced by the procedures followed by the judicial authorities’.^[97] The court considered that the use of a special advocate may have the capacity to serve as such a counterbalance, but not if the individual was not provided with sufficient information about the allegations against them such that they could give the special advocate effective instructions.^[98] The involvement of the court in making such an order may operate to safeguard the right to a fair hearing. However, the National Security Intelligence Act provides that in deciding whether to make an order to restrict the disclosure of information, the court must consider both whether there would be a risk of prejudice to national security and to whether it would have a substantial adverse effect on the substantive hearing in the proceeding.^[99] It is noted that the courts routinely accept that they are not well placed to evaluate intelligence, and that the public interest in national security will rarely yield to the public interest in the administration of justice.^[100] As such, this may mean in practice that the court is not fully able to effectively ensure the right to a fair trial where the Attorney-General has issued a certificate stating that the disclosure of such evidence risks prejudicing national security.

2.78 While the special advocate scheme may work in practice to ensure an offender is able to obtain a fair hearing when restricted evidence is relied on in the making of an extended supervision order, there is a risk that the offender may not be able to adequately contest the arguments or evidence against them as they may be excluded from part of the hearing and from adequately instructing the special advocate so that they are able to effectively challenge it. As such, questions remain as to whether the detriment caused to an individual in seeking to defend themselves in an extended supervision order application proceeding involving the use of evidence which is withheld from them would be sufficiently counterbalanced by having access to a special advocate, and whether the capacity of a court to seek to ensure a fair trial, while needing to balance the right to a fair trial with the risk of prejudice to national security, would be sufficient, such that an individual could still have a fair trial in such circumstances.

Committee view

2.79 The committee thanks the Attorney-General for this response. The committee notes that the bill sets out mechanisms whereby an offender and their legal representative may not be provided with national security information relating to an extended supervision order (although they would be provided with sufficient information about the allegations). This may result in information being used in evidence against the offender without them being able to directly challenge such evidence.

2.80 The committee notes that these measures engage and may limit the right to a fair hearing. This right may be permissibly limited if it is shown to be reasonable, necessary and proportionate.

2.81 The committee considers these measures seek to achieve the legitimate objective of protecting Australia's national security, as the inappropriate disclosure of national security information has the potential to prejudice Australia's national security and the security of all Australians.

2.82 The committee notes that where a court has ordered a closed hearing, there is an important process whereby a special advocate may be appointed where the offender is not able to receive certain highly sensitive information, and that the offender will be given sufficient information about the allegations to enable instructions to be given in relation to those allegations. The committee recognises there are some restrictions on communications between special advocates and the offender but that such restrictions are warranted in all of the circumstances given the important role they play in protecting Australia’s national security.

[1] See https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Scrutiny_reports.

[2] This entry can be cited as: Parliamentary Joint Committee on Human Rights, Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2020, Report 13 of 2020; [2020] AUPJCHR 157.

[3] Parliamentary Joint Committee on Human Rights, Report 11 of 2020 (24 September 2020), pp. 2-29.

[4] Schedule 1, Part 1, item 62, proposed subsection 105A.5(1).

[5] Schedule 1, Part 1, item 82, proposed section 105A.6A.

[6] Schedule 1, Part 1, item 59, proposed subsections 105A.3(3); and sections 105A.18A-18B.

[7] Schedule 1, Part 1, item 95, proposed section 105.9A. While a court could make a series of successive interim supervision orders, the total period of all such interim orders could not be more than three months, unless the Court was satisfied that there were exceptional circumstances: proposed subsection 105A.9A(8).

[8] Schedule 1, Part 1, item 87, proposed subsection 105A.7A(5).

[9] Namely, an offence under Part 5.3 of the Criminal Code.

[10] Schedule 1, Part 1, item 87, proposed subsections 105A.7A(1) and 105A.7B(1).

[11] Schedule 1, Pat 1, item 87, proposed subsection 105A.7B(2).

[12] Schedule 1, Pat 1, item 87, proposed subsection 105A.7B(3).

[13] Schedule 1, Part 1, item 59, proposed subsection 105A.3(1) provides that a person would be eligible where they had been convicted of: an offence against Subdivision A of Division 72 of the Criminal Code Act 1995 (Criminal Code) (international terrorist activities using explosive or lethal devices); a serious Part 5.3 offence (being terrorism offences carrying a maximum penalty of 7 or more years imprisonment); an offence against Part 5.5 (Foreign incursions and recruitment) (other than an offence against subsection 119.7(2) or (3)); or an offence against the now repealed Crimes (Foreign Incursions and Recruitment) Act 1978, other than an offence against paragraph 9(1)(b) or (c) of that Act.

[14] Schedule 1, Part 1, proposed subsection 105A.3A(9) confirms that this would include sentences of imprisonment for an offence against a law of the Commonwealth, or a State or Territory, whether or not the sentence was imposed before, after, or at the same time as the sentence for an offence referred to in proposed subsection 105A.3(1) (being a terrorism-related offence).

[15] Schedule 1, Part 1, item 59, proposed subsections 105A.3A(1)-(5).

[16] Schedule 1, Part 1, item 59, proposed section 105A.3A.

[17] Schedule 1, Part 1, item 102, proposed subsection 105A.10(1B).

[18] Schedule 1, Part 1, item 106, proposed subsection 105A.11(1).

[19] See Criminal Code, existing subsections 105A.11(2) and (3).

[20] International Covenant on Civil and Political Rights, articles 6 and 9. Statement of compatibility, p. 11.

[21] International Covenant on Civil and Political Rights, article 6(1) and Second Optional Protocol to the International Covenant on Civil and Political Rights, article 1.

[22] International Covenant on Civil and Political Rights, article 9.

[23] Statement of compatibility, p. 11.

[24] Statement of compatibility, p. 11.

[25] International Covenant on Civil and Political Rights, article 9.

[26] That is, an application for such an order would need to be made to a court, evidence adduced, and a member of the judiciary satisfied as to the level of potential risk posed by the individual.

[27] Fardon v Australia, UN Human Rights Committee Communication No. 1629/2007 (2010), CCPR/C/98/D/1629/2007 [7.4(4)]. See also Tillman v Australia, UN Human Rights Committee Communication No. 1635/2007 (2010), CCPR/C/98/D/1635/2007.

[28] See, statement of compatibility, p. 35.

[29] Schedule 1, Pat 1, item 87, proposed subsection 105A.7B(1).

[30] International Covenant on Civil and Political Rights, article 17.

[31] Schedule 1, Part 1, item 87, proposed subsection 105A.7B(3).

[32] Schedule 1, Part 1, item 87, proposed section 105A.7C.

[33] See example at p. 74 of the explanatory memorandum.

[34] As set out in the initial analysis, see Parliamentary Joint Committee on Human Rights, Report 11 of 2020 (24 September 2020), pp. 26–28.

[35] International Covenant on Civil and Political Rights, article 12.

[36] Schedule 1, Part 1, item 87, proposed subsection 105A.7B(3). See, statement of compatibility, p. 17.

[37] International Covenant on Civil and Political Rights, article 9.

[38] United Nations Human Rights Committee, General Comment No.27: Article 12 (Freedom of Movement) (1999) [7]; see also United Nations Human Rights Council, Report of the Working Group on Arbitrary Detention, A/HRC/22.44 (2012) [55] and [57]; Foka v Turkey, European Court of Human Rights Application No.28940/95, Judgment (2008) [78]; Gillan and Quinton v United Kingdom, European Court of Human Rights Application No.4158/05, Judgment (2010) [54]–[57]; Austin v United Kingdom, European Court of Human Rights Application Nos. 39692/09, 40713/09 and 41008/09, Grand Chamber (2012) [57]; Gahramanov v Azerbaijan, European Court of Human Rights Application No.26291/06, Judgment (2013) [38]–[45].

[39] Schedule 1, Part 1, item 87, proposed subsection 105A.7B(3). The statement of compatibility notes that the right to liberty may be engaged with respect to a continuing detention order, but not pursuant to a condition imposed under a supervision order. See, pp. 12–16.

[40] International Covenant on Civil and Political Rights, articles 19–22.

[41] See, statement of compatibility, pp. 33-34. The statement of compatibility does not identify that a condition imposed under a supervision order may limit the right to freedom of assembly.

[42] International Covenant on Economic, Social and Cultural Rights, articles 6–7.

[43] Schedule 1, Part 1, item 87, proposed subsections 105A.7B(3) and 105A.7B(8). See, statement of compatibility, p. 35.

[44] International Covenant on Economic, Social and Cultural Rights, article 13.

[45] Schedule 1, Part 1, item 87, proposed subsection 105A.7B(3). The statement of compatibility does not identify that such a condition may engage and limit the right to education.

[46] International Covenant on Economic, Social and Cultural Rights, article 10(1).

[47] Schedule 1, Part 1, item 87, proposed subsection 105A.7B(3). The statement of compatibility does not identify that such conditions may engage and limit the right to protection of the family.

[48] International Covenant on Civil and Political Rights, article 18.

[49] UN Human Rights Committee, General Comment No. 22: Article 18 (Freedom of thought, conscience or religion) (1993) [4].

[50] Schedule 1, Part 1, item 87, proposed subsection 105A.7B(3). The statement of compatibility does not identify that such conditions may engage and limit the right to freedom of religion.

[51] International Covenant on Economic, Social and Cultural Rights, article 11.

[52] UN Human Rights Committee, General Comment No. 17: Article 24 (1989) [1]. See also, Convention on the Rights of the Child. The statement of compatibility does not identify if the measures engage the rights of the child.

[53] UN Human Rights Committee, General Comment No. 17: Article 24 (1989) [2]. See also General Comment 21: Article 10 (1992) [13] in which the committee notes that the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules) are a relevant consideration for States. See also UN Human Rights Committee, General Comment No. 32: right to equality before courts and tribunals and to a fair trial (2007) [42]–[44].

[54] UN Committee on the Rights of the Child, General comment No. 24 (2019) on children’s rights in the child justice system (2019) [31].

[55] Schedule 1, Part 1, item 59, proposed subsection 105A.3(1)(c), stating that the person will be at least 18 years old when the sentence for the relevant conviction ends.

[56] The minister's response to the committee's inquiries was received on 14 October 2020. This is an extract of the response. The response is available in full on the committee's website at: https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Scrutiny_reports.

[57] See Welch v United Kingdom, European Court of Human Rights, Applicant No. 17440/90; Scoppola v Italy (No. 2), European Court of Human Rights (Grand Chamber), Application No. 10249/03 (2009); and Trine Baumbach, 'The Notion of Criminal Penalty and the Lex Mitior Principle in the Scoppola v. Italy Case,' Nordic Journal of International Law, Volume 80, no. 2 (2011), pp.125-142, particularly pp. 131- 132.

[58] Scoppola v Italy (No. 2), European Court of Human Rights (Grand Chamber), Application No. 10249/03 (2009) [96].

[59] Fardon v. Australia, UN Human Rights Committee, CCPR/C/98/D/1629/2007, 10 May 2010, [7.4].

[60] Fardon v. Australia, UN Human Rights Committee, CCPR/C/98/D/1629/2007, 10 May 2010, [7.4]; Tillman v. Australia, UN Human Rights Committee, CCPR/C/98/D/1635/2007, 10 May 2010, [7.4].

[61] See, Trine Baumbach, 'The Notion of Criminal Penalty and the Lex Mitior Principle in the Scoppola v. Italy Case,' Nordic Journal of International Law, Volume 80, no. 2 (2011), pp.125-142, particularly pp. 131- 132. Baumbach states, ' If, instead, the measure is a standardised sanction and not imposed on the basis of the concrete circumstances in the case at hand, it points in the direction of a non-penal measure'.

[62] Pinkney v Canada, UN Human Rights Communication No.27/1977 (1981) [34]. The UN Human Rights Committee noted that a legislative provision framed in very general terms may not itself provide satisfactory legal safeguards against arbitrary application, at [34].

[63] Bail Act 2013 (NSW), section 19.

[64] See, Rakielbakhour v DPP [2020] NSWSC 323 (31 March 2020) [21] per Hamill J.

[65] See, M v M [1988] HCA 68 [25].

[66] Liesbeth van der Heide, Marieke van der Zwan, and Maarten van Leyenhorst, 'The Practitioner's Guide to the Galaxy: A Comparison of Risk Assessment Tools for Violent Extremism', International Centre for Counter-Terrorism Research Paper (September 2019)

p. 22. RTI International further cautions that for assessment tools for violent extremism to have any authority they must be empirically evaluated, but none of the existing tools have been comprehensively validated, in part because extremist violence is a relatively rare occurrence and its perpetrators are often either killed in the act or arrested and unavailable for interview by researchers. See, RTI International, ' Countering Violent Extremism: The Application of Risk Assessment Tools in the Criminal Justice and Rehabilitation Process', Literature Review prepared for the Department of Homeland Security (February 2018), p. 23.

[67] In making such an assessment, a court would not be required to, for example, take into consideration the individual's privacy, their capacity to support themselves financially and meet their basic needs (through work or further education), or their health (including mental health) and personal relationships.

[68] Schedule 1, Part 1, item 87, proposed section 105A.7B.

[69] See, Schedule 1, Part 1, item 87, proposed subsection 105A.7C(5).

[70] Explanatory memorandum, p. 74.

[71] Criminal Code, subsection 105A.7(1)(b).

[72] Although there may be some limited and infrequent circumstances where it is theoretically possible that a person could be subject to an extended supervision order and bail or parole conditions at the same time, such as if after an extended supervision order was made the person was convicted of another offence, and was then given bail or parole for that offence. In such circumstances, the Attorney-General stated that such cases would be similar to the current arrangements where an individual can be subject to state or territory and Commonwealth parole conditions simultaneously, and that where this occurs, the Commonwealth Parole Office works with state or territory agencies to manage the offender under both orders.

[73] Noting that parole may only be granted to terrorist offenders, where 'exceptional circumstances' exist to justify making such an order: Crimes Act 1914, section 19ALB.

[74] It appears that only Victoria and New South Wales have prison programs directed specifically towards radicalised inmates: the Victorian Community Integrated Support Program; and the NSW proactive integrated support model (PRISM) intervention. See, Professor Adrian Cherney, 'Prison radicalisation and deradicalisation in Australia', Australian Strategic Policy Institute (4 April 2020); and NSW Inspector of Custodial Services, 'The management of radicalised inmates in NSW' (May 2018).

[75] Fardon v Australia, UN Human Rights Committee Communication No. 1629/2007 (2010), CCPR/C/98/D/1629/2007 [7.4(4)]. See also Tillman v Australia, UN Human Rights Committee Communication No. 1635/2007 (2010), CCPR/C/98/D/1635/2007.

[76] Schedule 1, Part 1, item 120, proposed sections 104A.14A.

[77] Schedule 1, Part 1, item 120, proposed sections 104A.14B–104A.14D.

[78] Schedule 1, Part 1, item 120, proposed sections 104A.14B.

[79] Schedule 1, Part 2, items 189 –210.

[80] National Security Information (Criminal and Civil Proceedings) Act 2004, section 3.

[81] National Security Information (Criminal and Civil Proceedings) Act 2004, section 38J.

[82] National Security Information (Criminal and Civil Proceedings) Act 2004, section 38I

[83] National Security Information (Criminal and Civil Proceedings) Act 2004, section 38G.

[84] National Security Information (Criminal and Civil Proceedings) Act 2004, section 38J.

[85] National Security Information (Criminal and Civil Proceedings) Act 2004, subsection 38J(5).

[86] National Security Information (Criminal and Civil Proceedings) Act 2004, section 38PB.

[87] Explanatory memorandum, p. 115.

[88] International Covenant on Civil and Political Rights, articles 14-15.

[89] National Security Information (Criminal and Civil Proceedings) Act 2004, paragraph 38J(1)(c).

[90] National Security Information (Criminal and Civil Proceedings) Act 2004, sections 38PA and 38PB.

[91] National Security Information (Criminal and Civil Proceedings) Act 2004, section 38PD.

[92] National Security Information (Criminal and Civil Proceedings) Act 2004, subsection 38PF(3).

[93] National Security Information (Criminal and Civil Proceedings) Act 2004, subsection 38PF(8).

[94] National Security Information (Criminal and Civil Proceedings) Act 2004, subsection 38PF(3).

[95] UN Human Rights Committee, General Comment No. 32: The right to equality before courts and tribunals and to a fair trial (2007) [13].

[96] Morael v France, UN Human Rights Committee (1989) UN Doc CCPR/C/36/D/207/1986 [9.4].

[97] A v United Kingdom [2009] ECHR 301; (2009) 49 EHRR 29 [205].

[98] A v United Kingdom [2009] ECHR 301; (2009) 49 EHRR 29 [220]. Affirmed by the United Kingdom House of Lords in Secretary of State for the Home Department v AF [2009] UKHL 28 [59].

[99] National Security Information (Criminal and Civil Proceedings) Act 2004, subsection 38J(5).

[100] See Brennan J in Church of Scientology v Woodward [1982] HCA 78; (1982) 154 CLR 25 at 76; Leghaei v Director-General of Security [2007] FCAFC 37 at [48] to [54].

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Australian Parliamentary Joint Committee on Human Rights

Counter-terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2020 [2020] AUPJCHR 157 (13 November 2020)

Chapter 2

Concluded matters

Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2020[2]

Extended supervision order scheme

Summary of initial assessment

Preliminary international human rights legal advice

Multiple human rights

Prohibition against retrospective criminal laws

Multiple rights

Committee's initial view

Attorney-General's response[56]

Concluding comments

International human rights legal advice

Concluding observations

Committee view

Withholding of certain evidence from the offender

Preliminary international human rights legal advice

Right to a fair hearing

Committee's initial view

Attorney-General's response

Concluding comments

International human rights legal advice

Right to a fair trial

Committee view

Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2020^[2]

Attorney-General's response^[56]