Continuing Detention Orders: When courts try to predict the future, we

21st Nov 2016

The Turnbull government wants to go where no other democracy dares. Its Criminal Code Amendment (High Risk Terrorist Offenders) Bill, currently being considered by the Parliamentary Joint Committee on Intelligence and Security, will let people convicted of terrorism offences be detained long after their jail terms expire. Speculation about future conduct and secret evidence will be allowed. It is frightening stuff.

Under this Bill, a court will be able to order indefinite preventative detention (in the form of a Continuing Detention Order) if it finds that there is a 'high degree of probability' that an individual will commit a terrorist offence. Safeguards include the use of expert evidence and requiring all evidence to be admissible. Dig a little deeper, however, and these safeguards fall away.

The so-called 'expert' evidence requirement is a fiction. 'Experts' could predict future actions, and assure courts of the basis of their predictions. For expert evidence to be accepted in court, however, there needs to be a recognised field of expertise. There is currently no field of expertise in predicting terrorism. Some say it is developing, but it does not yet exist.

The experts would require tools on which to base their predictions. In jurisdictions where preventative detention is currently allowed for violent and/or sexual offenders, tools based on many years of psychological and psychiatric study are used to predict behaviour. This type of evidence, however, notoriously over-predicts. The United Nations has found that these regimes give rise to arbitrary detention, conflicting with human rights obligations.

How do experts predict future offending when it comes to terrorism? They can't. No equivalent tools exist.

There is also the issue of 'admissible evidence'. This should be a fundamental requirement before depriving someone of their liberty, especially when the detention relates to crimes feared for the future, not committed in the past. The catch is that the person in question has no right to see this evidence, if national security or public interest issues exist. And the rules of evidence to be applied would be the civil standard, rather than the criminal one, so essential protections available to people defending themselves against the state will be absent.

During the joint committee hearing, the practical implications of withholding evidence became clear. Dr David Neal, QC, described a control order matter in which he had acted. A claim for public interest immunity had been made over key evidence: police did not want to disclose their tracking methods. However when the evidence was examined, the basis of the application was mistaken. The tracking device that had allegedly revealed the location of the suspect was actually attached to the police vehicle, not the suspect's.

The right to be able to examine evidence is fundamental. Without it police mistakes, or worse, could lead to indefinite detention of people who present no risk.

So what protection will these controversial changes provide?

We are told that this law will prevent terrorism. Where an individual threatens to commit a terrorist attack, however, there is no need for a Continuing Detention Order. Making such threats is itself a terrorist act, and can lead to life imprisonment.

This bill would allow orders in much broader circumstances.

If a court accepts that an offence such as recklessly possessing a 'thing' that might be connected to a terrorist offence is likely to be committed in the future, for example, a Continuing Detention Order can be organised. The individual does not actually have to intend that a terrorist act ensue. If prosecutors can show recklessness, it is up to the individual to show that there was no intention to facilitate a terrorist act to avoid the order.

This exercise would be farcical. A court would need to consider whether an individual, with an innocent mind and no intention to cause harm, might have been reckless regarding the possibility that a 'thing' they possess could be connected with terrorism. Given virtually any 'thing' could be so connected, the individual would be required to consider this possibility with every 'thing' in their possession. If the court were satisfied that such consideration would not occur, it could make a Continuing Detention Order. It would then be up to the individual to show that no terrorist intent would exist in relation to this hypothetical thing. Anyone could be caught by such judicial crystal-ball gazing.

There is no reason to believe that Continuing Detention Orders will increase safety. Studies of preventative detention for sexual and violent offenders suggest that these schemes have actually antagonised people. Individuals affected have become angry and disaffected, potentially posing an increased risk.

Evidence provided to the joint committee sheds light on the real reason behind this bill. According to Michael Phelan, Deputy AFP Commissioner, control orders are incredibly time and resource intensive, costing upwards of $3 million to $4 million each. Keeping people in prison is easier. An application for a Continuing Detention Order would be quicker than a control order, according to Neil Gaughan, Assistant AFP Commissioner, and there would be much less surveillance required: the individuals are already detained.

Unfortunately for the AFP, a liberal democracy is not founded on what is convenient for police. It is founded on the fundamental right to be free to live our lives as we choose. Any state interference with that freedom must be minimal, and strictly in line with the law. When the law requires courts to engage in predicting the future, we enter a legal twilight zone. As Stuart Clark, president of the Law Council of Australia, said, "At the end of the day, what are we fighting for? Haven't we lost the argument if we do not maintain a society which strikes an appropriate balance between necessary protection and individual rights and freedoms?".


The ALA would like to acknowledge that this article has first been published in The Sydney Morning Herald.


Anna Talbot 
is the Legal and Policy Adviser at the Australian Lawyers Alliance.



Greg Barns 
is a barrister, spokesperson for the Prison Action and Reform Group Inc and the Australian Lawyers Alliance. 


The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).

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Tags: Human rights Greg Barns Anna Talbot Continuing Detention Orders Legal Consequences