Media Release: Continuing Detention Orders Should Be Abolished

Liberty Victoria endorses the recommendation of the Independent National Security Legislation Monitor (INSLM) that Continuing Detention Orders (CDOs) be abolished.

A CDO is a court order that keeps a person who has committed a terrorism offence in prison beyond the end of their sentence. It is made on the basis of perceived risk of future terrorism offending, but there is no valid tool to assess that risk

Terrorism offences already challenge norms of the criminal justice system. They regularly concern purely preparatory conduct, even where there has been no specific terrorist act in contemplation. Offences include possessing a thing in connection with a terrorist act, or supporting a terrorist organisation. There are extensive powers granted to law enforcement agencies to arrest a person long before their conduct poses a real risk of harm to any person. 

When a person is sentenced for such conduct, a judicial officer determines a proportionate sentence having regard to, amongst other things, denunciation and the need for community protection; these factors are accorded paramount importance in such matters.

Detaining someone under a CDO is designed to address the risk of committing (or attempting, inciting, or conspiring to commit) a further terrorism offence – even after the proportionate sentence has expired. This challenges fundamental norms in our legal system.  

If an order is made, a CDO detainee is kept in a segregated unit in a maximum-security prison for up to three years on a single order; there is no limit to the number of orders that may be made in succession, rendering detention potentially indefinite. In Victoria, a CDO detainee is housed without access to any other prisoners, work or exercise facilities – conditions resembling solitary confinement. Accordingly, for the person involved, being placed on a CDO is almost invariably regarded as additional punishment, even if purportedly imposed for protective reasons. 

CDO proceedings are civil in nature, and CDOs can be made if the person is found, to a high degree of probability, to be an unacceptable risk. A respondent does not have the protections afforded to accused people in criminal proceedings, including the criminal standard of proof. Although the legislation imposes certain safeguards, such as a requirement for the Commonwealth to disclose evidence of why an order should not be made, important evidence has been kept hidden in a manner troubling to the INSLM. 

Australia is the only country in the world with such a detention regime. 

The INSLM has found that the CDO regime is a disproportionate response to the risk of terrorism in Australia. This is because rates of recidivism are “astonishingly low”, law enforcement authorities already have exceptional powers to supervise and control people in the community – including those released after having served their sentences, and it is impossible to accurately predict risk. 

Because of the absence of any reliable methodological foundation for the assessment of risk for terrorism offences, the imposition of a CDO is highly likely to amount to arbitrary detention and be in breach of international law. Liberty Victoria joins the call from the Law Council of Australia for urgent reform to the Criminal Code by abolishing CDOs.