Criminal Code Amendment (High Risk Terrorist Offenders) Act 2016

Overview

The Criminal Code Amendment (High Risk Terrorist Offenders) Act 2016 was enacted to address the problem of high-risk terrorist offenders who, upon completing their prison sentences, pose a significant threat to public safety if released back into the community. The Act was passed by the Parliament of Australia and received Royal Assent on 7 December 2016. The primary objective of this legislation is to provide for the continuing detention of such offenders, thereby ensuring the safety and protection of the community. The Act amends the Criminal Code Act 1995 to introduce provisions for continuing detention orders, which can be applied for by the Attorney-General and are subject to review by the courts. These orders allow for the detention of terrorist offenders in prison beyond the completion of their sentences if they are deemed to pose an unacceptable risk to public safety. The Act also includes provisions for the assessment of offenders by relevant experts, the treatment of offenders in detention, and the review and potential revocation of continuing detention orders.

Scope and Application

The Criminal Code Amendment (High Risk Terrorist Offenders) Act 2016 amends the Criminal Code Act 1995 to introduce provisions for the continued detention of terrorist offenders who pose an unacceptable risk if released into the community. This Act applies to individuals convicted of certain terrorist offences, including those related to international terrorist activities using explosive or lethal devices, serious Part 5.3 offences, and offences under the repealed Crimes (Foreign Incursions and Recruitment) Act 1978, excluding certain recruitment-related offences. The Act allows for the imposition of continuing detention orders by Supreme Courts of a State or Territory if the offender is deemed to pose an unacceptable risk of committing a serious Part 5.3 offence upon release. Such orders can be made even if the offender is already serving a sentence of imprisonment or if an interim detention order is in force. The Act outlines procedures for the application, assessment, and review of these orders, including the role of relevant experts in assessing the risk posed by the offender. It also provides for the treatment of offenders under detention, the sharing of information, and arrangements with states and territories for the detention of offenders. The Act applies nationally and includes provisions for the annual reporting on the operation of the Act and its sunset clause, which prohibits the application or making of continuing or interim detention orders after ten years from the Act's commencement.

Key Provisions

• The Criminal Code Amendment (High Risk Terrorist Offenders) Act 2016 (the Act) amends the Criminal Code Act 1995 to introduce provisions for the continued detention of high-risk terrorist offenders. Section 105A of the Criminal Code Act 1995 is inserted to establish a framework for the imposition, review, and enforcement of continuing detention orders for terrorist offenders who pose a significant risk to the community if released. The Act outlines the criteria for making such orders, the process for assessments and reviews, and the treatment of offenders while detained.
• The Act imposes several obligations on parties and entities it governs. For instance, the Attorney-General or a legal representative can apply for a continuing detention order for a terrorist offender who meets specific criteria, such as having been convicted of certain offences and being deemed to pose an unacceptable risk if released. The application process includes giving the offender a copy of the application and ensuring that any sensitive information is handled appropriately. Relevant experts must assess the risk posed by the offender and provide reports to the court, which must consider these assessments when deciding whether to impose a continuing detention order.
• In addition to the obligations, the Act establishes various consequences for non-compliance. For example, if a continuing detention order is in force, the offender is not eligible for bail or parole until the order ceases to be in force. Furthermore, any police officer may detain the offender for the purpose of giving effect to the order if it remains in force after the offender is released from custody. Failure to comply with the requirements for warning offenders about the possibility of a continuing detention order during sentencing does not affect the validity of the sentence but allows for the subsequent application for such an order. Additionally, there are specific provisions regarding the sharing of information and the delegation of powers by the Attorney-General to ensure the effective administration of this Act.

Legal classification tags

Area of Law

Criminal Law

National Security Law

Instrument

Act

Concepts

Commencement Provisions

Offence Provisions

Civil Penalty Provisions

Regulatory Standards

Enforcement Powers

Review & Sunset Clauses