1st Dec 2016 – Senate Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016 - Second Reading - Agree with the bill's main idea

The majority voted in favour of the main idea of the bill. In parliamentary jargon, they voted to read the bill for a second time. They can now discuss the bill in more detail.

Main idea of the bill

According to the bills digest, the bill will:

... establish a scheme for the continuing detention of terrorist offenders who are considered to pose an unacceptable risk of committing certain serious terrorism offences if released into the community at the end of their custodial sentence. The scheme will establish a Continuing Detention Order, made by application to the Supreme Court of a state or territory.

The bills digest also noted that "[t]he proposed Bill is not definitively constitutionally sound". In other words, the Parliament may not actually have the power to make laws like this under the Australian Constitution as Continuing Detention Orders may go against parts of the Constitution. In particular, the bills digest raises the following issues:

whether preventative detention is a non-judicial function that cannot be vested in a Chapter III court

whether a person can be validly detained for the risk of future criminal acts, rather than as a punishment for previous criminal acts — this point of debate is valid for both the scheme proposed in the Bill as well as the existing Preventative Detention Order regime, which has also not yet been considered by the High Court

whether the proposed scheme is valid in so far as it results in the incarceration of people following the issue of an order that may be considered to lack fair process, particularly because the person who is the subject of the continuing detention order is not able to respond to all evidence that a court might consider

apparent limitations on the ability of the court to consider alternatives to continuing detention.