House of Representatives

Revised Explanatory Memorandum

(Circulated by authority of the Attorney-General, the Honourable Christian Porter MP)

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Counter-Terrorism Legislation Amendment (2019 Measures No. 1) Bill 2019

1. This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Bill

2. The Bill strengthens Australia's counter-terrorism framework by ensuring that the Government has the means to protect the community from the risk of terrorist acts.

3. Schedule 1 of the Bill contains measures to introduce new restrictions on the existing arrangements for bail and parole. This implements the agreement of the Council of Australian Governments (COAG) at its meeting on 9 June 2017. Persons who have links with, or have shown support for, terrorist activities will not be released on bail or parole unless they can show that there are exceptional circumstances that would justify their release into the community.

4. Schedule 2 of the Bill makes amendments to improve the operation of the continuing detention order (CDO) scheme. These amendments address deficiencies in the existing CDO scheme to ensure that the Commonwealth is able to seek the continued detention of terrorist offenders serving custodial sentences who are assessed by a judge in civil proceedings to present an unacceptable risk to the community at the time their sentences finish.

Overview of measures

Crimes Act 1914

5. In response to the terrorist incident that occurred on 5 June 2017 in Brighton, Victoria, the COAG met on 9 June 2017 to consider reforms to Australia's bail and parole regimes. During the Brighton incident, Yacub Khayre shot and killed a man and held a woman hostage before being fatally shot by Victorian Police. Mr Khayre was on parole for Victorian offences, had a long history of violence and was previously acquitted of a terrorism offence.

At the COAG meeting, First Ministers agreed that there should be a presumption against bail and parole for persons who have demonstrated support for, or have links to, terrorist activity. At the special meeting of COAG on counter-terrorism on 5 October 2017, it was further agreed that these presumptions would be underpinned by four nationally consistent principles to ensure there is a presumption against bail and parole in agreed circumstances across Australia. These principles were developed in accordance with the COAG agreement, and endorsed by the Australia-New Zealand Counter-Terrorism Committee, namely:

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Principle 1 - the presumption against bail and parole should apply to categories of persons who have demonstrated support for, or links to, terrorist activity

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Principle 2 - high legal thresholds should be required to overcome the presumption against bail and parole

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Principle 3 - the implementation of the presumption against bail and parole should draw on and support the effectiveness of the Joint Counter-Terrorism Team model, and

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Principle 4 - implementing a presumption against bail and parole should appropriately protect sensitive information.

6. The four principles support the ultimate objective of minimising the risk to the community posed by this particular class of persons.

7. Section 15AA of the Crimes Act 1914 (Crimes Act) already provides for a presumption against bail for persons being considered for bail as a result of a charge or conviction for a terrorism offence. The person may overcome the presumption against bail if the bail authority is satisfied that exceptional circumstances exist to justify bail. The amendments to the Crimes Act in this Bill are necessary to give effect to the COAG decision and the first principle underpinning that decision, by expanding the application of section 15AA, and introducing a presumption against parole, for a broader group of persons, namely:

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persons charged with or convicted of a terrorism offence, including persons who might have been previously charged with or convicted of one of the offences listed in section 15AA, but are currently being considered for bail for a further federal offence

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persons who are the subject of a control order within the meaning of 5.3 of the Criminal Code, and

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persons who have made statements or carried out activities supporting, or advocating support for, terrorist acts within the meaning of Part 5.3 of the Criminal Code.

8. In line with the second principle underpinning the COAG decision, and consistent with the arrangements already in place for the existing presumption against bail, the relevant decision maker must not grant bail or parole to persons who are subject to the presumption unless satisfied that exceptional circumstances exist to justify the person's release on bail or parole.

9. The Independent National Security Legislation Monitor (INSLM) recently conducted a review into the prosecution and sentencing of children for Commonwealth terrorist offences. The INSLM'S report of the review was tabled in Parliament on 2 April 2019. Schedule 1 of the Bill responds to two of the issues considered by the INSLM, namely the application to children of the existing presumption against bail, and, the minimum non-parole period for terrorist offenders under section 19AG of the Crimes Act.

10. A key issue considered by the INSLM during the review and ultimately reflected in recommendations 1 and 2a of the INSLM report, is ensuring that the rights of children who are being prosecuted and sentenced for terrorist offences are taken into account. In response, amendments in Schedule 1 make it explicit that the best interests of the child are a primary consideration, with the protection of the community the paramount consideration, which takes precedence for the decision maker when determining whether exceptional circumstances exist to rebut the presumption against bail or parole, where the person is under the age of 18 years. The amendments make it clear that these same factors are also to be considered by the sentencing court when determining whether exceptional circumstances exist to justify a departure from the minimum non-parole period for a terrorism offence, where the offender is under the age of 18 years.

Criminal Code Act 1995

11. Schedule 2 of the Bill contains two measures amending the CDO scheme in the Criminal Code.

Concurrent sentences for relevant terrorism offences and other offences

12. The first measure addresses a gap in the CDO scheme by which individuals who are imprisoned for a combination of eligible terrorism offences and other offences are not eligible for a CDO where their sentence for the eligible terrorism offences ends before the sentence for the other offences.

13. Under the current provisions in Division 105A of the Criminal Code, a CDO may be made if the Supreme Court is satisfied of all relevant matters under section 105A.7, and:

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the offender has been convicted of a specified offence listed in paragraph 105A.3(1)(a) (eligible terrorism offence), and

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the offender is detained in custody serving a sentence for the eligible offence (or is already subject to a CDO), and

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the offender is at least 18 years old when their sentence for the eligible offence ends.

14. Paragraph 105A.5(2)(a) currently provides that the AFP Minister may only apply for a CDO in relation to a terrorist offender not more than 12 months before the end of their eligible terrorism sentence, at the end of which they would be required to be released into the community. The wording of this provision creates a gap where an otherwise eligible offender who is convicted and sentenced for a further offence that expires after the eligible sentence, cannot be the subject of a CDO application.

15. A further sentence could be one that is served concurrently with the eligible sentence, or commences at the conclusion of their eligible sentence (a cumulative sentence).

16. In either situation, the legislative criteria would not be met because the offender would not be required to be released into the community following the conclusion of the eligible sentence.

17. To address this gap, the Bill will amend Division 105A to provide that terrorist offenders who are serving concurrent or cumulative sentences for an eligible terrorism offence and another offence will remain eligible for consideration for a CDO at the conclusion of their sentence of imprisonment. The amendments will also put beyond doubt that those who escape from custody during their sentence will remain eligible for a CDO. These amendments will apply to individuals irrespective of whether their sentence for the eligible terrorism offence ends before or after the commencement of these provisions.

Protection of sensitive information

18. The second measure enhances the mechanisms available to the Commonwealth for the protection of sensitive information during CDO proceedings by aligning them with the protections available in criminal prosecutions.

19. Under the current provisions in Division 105A, a terrorist offender who is the subject of a CDO application by the AFP Minister must be given a 'complete copy' of that application. Section 105A.5 allows for sensitive information in the application to be withheld from the terrorist offender for a period to enable the AFP Minister to seek court orders protecting its disclosure to the broader public. However, the section ultimately requires all information in the application to be given to the terrorist offender.

20. CDO applications must include any report or document that the applicant intends to rely upon (inculpatory information) as well as any material or facts of which the AFP Minister is aware that would reasonably be regarded as supporting a finding that the order should not be made (exculpatory information). Section 105A.5 requires the AFP Minister to make reasonable inquiries to ascertain any exculpatory information that is known to any Commonwealth law enforcement, intelligence or security officer.

21. These provisions do not provide sufficient protections for sensitive information that must be included in CDO applications. Currently, the requirement to provide a 'complete copy' of the application (including any sensitive exculpatory material) removes the Commonwealth's ability to protect any information contained in the CDO application by:

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relying on public interest immunity (PII) claims to withhold, redact or remove sensitive details from exculpatory material, and

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obtaining protective orders under the National Security Information (Criminal and Civil Proceedings) Act 2004 (NSI Act), such as to summarise the material to remove sensitive details.

22. To address these issues, the Bill will provide that the 'complete copy' requirement of a CDO application is subject to any court orders made relating to the protection of information in the application, including in relation to claims for PII or under the NSI Act, or any certificate that the Attorney-General issues under the NSI Act. This will align the CDO scheme with criminal law practice more generally, where evidence is only given to a terrorist offender subject to claims for PII or orders or certificates under the NSI Act.

23. Existing judicial safeguards around the use of PII and the NSI Act will apply, which will ensure that offenders always know the case against them and will be able to contest claims for PII and under the NSI Act in accordance with existing practice. Courts will retain the power to determine these orders, and may exercise their inherent jurisdiction to stay proceedings entirely if satisfied that withholding information would involve unacceptable injustice or unfairness.

Human rights implications

24. This Bill engages the following rights:

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the right to freedom from arbitrary detention and the right to liberty of the person in Article 9 of the International Covenant on Civil and Political Rights (ICCPR)

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the right of persons deprived of their liberty to be treated with humanity and with respect for the inherent dignity of the human person in Article 10 of the ICCPR

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the right to freedom of movement under Article 12 of the ICCPR

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the rights of the child under Articles 3, 37 and 40 of the Convention on the Rights of the Child (CRC)

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the right to procedural guarantees in Article 14 of the ICCPR, and

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the right to freedom from arbitrary or unlawful interference with privacy in Article 17 of the ICCPR.

25. The Bill may be perceived to engage, or be said to indirectly engage, the following rights:

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the prohibition on the retrospective operation of criminal laws in Article 15 of the ICCPR

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the right to freedom of expression in Article 19 of the ICCPR, and

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the right to freedom of association in Article 22 of the ICCPR.

SCHEDULE 1 - RESTRICTIONS ON BAIL AND PAROLE

26. Schedule 1 expands the existing presumption against bail in section 15AA, and introduces a presumption against parole for a broader group of offenders. The presumption against bail and parole will now apply to:

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persons charged with or convicted of a terrorism offence, including persons who might have been previously charged with or convicted of one of the offences listed in section 15AA, but are currently being considered for bail for a further federal offence

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persons who are the subject of a control order within the meaning of Part 5.3 of the Criminal Code, and

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persons who have made statements or carried out activities supporting, or advocating support for, terrorist acts within the meaning of Part 5.3 of the Criminal Code.

27. The presumption against bail and parole is not insurmountable, but the decision maker must not grant bail or parole to the person unless satisfied that exceptional circumstances exist to justify release on bail or parole.

28. The amendments make it explicit that a bail authority, when determining whether exceptional circumstances exist to rebut the presumption against bail, will consider the best interests of the child as a primary consideration, with the protection of the community the paramount consideration, where the person is under the age of 18 years. This implements recommendation 2a of the INSLM's report in full. The amendments make it clear that these factors are also to be considered by:

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the sentencing court when determining whether exceptional circumstances exist to justify a departure from the minimum non-parole period for a terrorism offence, where the offender is under the age of 18 years, and

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the Attorney-General when determining whether exceptional circumstances exist to justify the release of a terrorist offender or terrorism-related offender to parole.

The right to freedom from arbitrary detention and the right to liberty of the person in Article 9 of the ICCPR

29. The right to personal liberty and freedom from arbitrary detention is protected in Article 9 of the ICCPR. Article 9 regulates, rather than prohibits, detention-it is only 'arbitrary' detention that is prohibited. It requires that persons not be subject to arrest and detention except as provided for by law, and provided that neither the arrest nor the detention is arbitrary. Article 9 also provides a right to be tried for criminal matters within a reasonable period. This right relates to persons in pre-trial detention, including as a result of the presumption against bail. Detention is not arbitrary where, in all the circumstances, it is reasonable, necessary and proportionate to achieving a legitimate objective.

30. The presumption against bail in the existing section 15AA of the Crimes Act applies to persons charged with or convicted of a terrorism offence. The expanded presumption against bail, as well as the new presumption against parole, is intended to operate more broadly, to cover all types of terrorism-related offenders and supporters. It will cover not just those who are charged with or convicted of a terrorism offence at the time of the bail or parole consideration but also those charged with or convicted of a terrorism offence in the past who are now being considered for bail or parole for another offence. Further, the provisions will cover those who are the subject of a control order, and those persons who have made statements or carried out activities supporting, or advocating support for, terrorist acts. This includes persons who are being considered for bail or parole for non-terrorism federal offences.

31. Detention as a result of the presumption against bail is authorised by and operates in accordance with the procedures described in section 15AA of the Crimes Act, as amended by Schedule 1. Detention as a result of the presumption against parole is be authorised by and operates in accordance with the procedures described in Part IB of the Crimes Act, as amended by Schedule 1. Accordingly, the expansion of the existing presumption against bail, and the introduction of the new presumption against parole, to include persons who have demonstrated support for, or have links to terrorism (as well as persons subject to a control order and persons who have at any time been charged with or convicted of a terrorism offence) complies with the requirement in Article 9(1) that deprivation of liberty not occur except in accordance with grounds and procedures prescribed by law. To the extent that the Schedule engages that right, it is consistent with it.

32. The threat to Australia's national security and the rights and freedoms of Australians posed by terrorism remains elevated. Australia and Australians are viewed as targets by people who want to harm us. Australia's national terrorism threat level remains at PROBABLE-that is, credible intelligence, assessed to represent a plausible scenario, indicates an intention and capability to conduct a terrorist attack in Australia. Since the national terrorism threat level was raised in September 2014, there have been seven terrorist attacks targeting people in Australia and 16 major disruption operations in relation to potential attack planning. It is essential that our laws continue to enable intervention and disruption at the early stages of preparations for a terrorist act. The ASIO 2017-18 annual report states that 'any terrorist attack in Australia over the next 12 months would probably involve weapons and tactics that are low-cost and relatively simple, including basic weapons, explosives and/or firearms ... everyday objects that do not require specialist skills'. A core element of Australia's counter-terrorism strategy is prevention and disruption, and the presumptions against bail and parole are necessary legislative measures to support this element of the strategy. The potential for serious harm to Australia's national security is posed not only by terrorist offenders but also those persons who have demonstrated support for, or have links to terrorist activity. Protecting the community from the threat posed by these persons is a legitimate objective and the measures in Schedule 1 are necessary to protect Australia's national security and the rights and freedoms of Australians from this threat.

33. A person who is convicted of a terrorism offence has been proven, to the satisfaction of the law, to be a danger to the Australian community. A person who is subject to a control order has been identified by law enforcement and the courts as posing a risk to society. The threshold for the use of control orders is very high. Similarly, where a person has shown support or advocates support for terrorist acts, it is appropriate that the decision maker can take this factor into account when considering bail or parole, regardless of the current offence that the person has been charged with or convicted of. It is essential that decision-makers at the key steps in the criminal justice process of bail and parole are able to take into account a person's prior actions, where those prior actions indicate a terrorism-related risk to the community and notwithstanding the person might be being considered for bail or parole for a seemingly unrelated federal offence. The inclusion of this set of persons under the presumptions against bail and parole protects and promotes the rights of people in the community whose life, liberty and property would be imperilled by the commission of terrorism offences. It is necessary to include this set of offenders under the presumptions against bail and parole as part of Australia's efforts to combat the evolving nature of the threat posed by terrorism and the need to protect the community from this threat.

34. Both the presumption against bail and parole is reasonable, proportionate and not arbitrary, as each is subject to the exercise of discretion to address the risk of terrorism. The presumptions are also consistent with Article 9(4) of the ICCPR, which provides that persons deprived of their liberty must be able to challenge the legality of their detention in court. In relation to the presumption against bail, the Bill retains the right of the defendant to challenge the lawfulness of their detention (as provided for in subsection 15AA(3A) of the Crimes Act). Further, under section 15AA(1), 'a bail authority must not grant bail to a person ... unless the bail authority is satisfied that exceptional circumstances exist to justify bail'. Similarly, under proposed subsection 19ALB(1) of the Crimes Act, 'the Attorney-General must not make a parole order in relation to a person ... unless satisfied that exceptional circumstances exist to justify parole'. The defendant/federal offender bears the onus of satisfying the decision maker that exceptional circumstances exist to justify their release on bail or parole. Exceptional circumstances are not defined, with all relevant information able to be taken into account by the decision maker. Further, in relation to parole, decisions of the Attorney-General regarding release on parole are reviewable decisions under the Administrative Decisions (Judicial Review) Act 1977. These are important safeguards which ensure that these measures are consistent with Article 9 of the ICCPR.

Right to freedom of movement under Article 12 of the ICCPR

35. The right to freedom of movement is protected in Article 12 of the ICCPR. One component of this right is that people must be able to move freely and choose a place of residence within a country. This right may be limited for the purpose of protecting national security, public order, public health or morals or the rights and freedoms of others, as allowed by Article 12(3).

36. The presumptions against bail and parole are necessary legislative tools in support of the prevention and disruption of terrorism. A person who is convicted of a terrorism offence has been proven, to the satisfaction of the law, to be a danger to the Australian community. A person who is subject to a control order has been identified by law enforcement and the courts as posing a risk to society. In relation to such persons, as well as those who have shown support or advocated support for terrorist acts, restricting their freedom of movement through the rebuttable presumptions against bail and parole is a legitimate response to the need to protect the community and Australia's national security from the evolving nature of the threat posed by terrorism.

37. Additionally, both the presumption against bail and parole are subject to the exercise of discretion to address the risk of terrorism. In relation to section 15AA, the Bill retains the right to challenge the lawfulness of detention (as provided for in subsection 15AA(3A)). Further, under section 15AA(1), 'a bail authority must not grant bail to a person ... unless the bail authority is satisfied that exceptional circumstances exist to justify bail'. Similarly, under proposed subsection 19ALB(1), 'the Attorney-General must not make a parole order in relation to a person ... unless satisfied that exceptional circumstances exist to justify parole'. In accordance with the existing parole decision making arrangements for all federal offenders, offenders (including children) subject to the presumption against parole will be afforded procedural fairness during the process of each consideration by the Attorney-General of whether or not to grant parole, and have access to existing avenues of judicial review. Further, the decision maker, when considering whether exceptional circumstances to justify bail or parole, must take into account the best interests of the child as a primary consideration, consistent with Article 3 of the CRC. These are important safeguards which ensure these measures are consistent with Article 12 of the ICCPR.

The rights of the child under Articles 3, 37 and 40 of the CRC

38. The Bill engages rights under the CRC, including Articles 3, 37 and 40, because the measures in Schedule 1 apply to children as well as adults. Article 3 of the CRC requires all legislative, administrative and judicial bodies and institutions to systematically consider how children's rights and interests are or will be affected directly or indirectly by their decisions and actions. Under Article 37 of the CRC, the arrest, detention or imprisonment of a child shall be used only as a measure of last resort and for the shortest appropriate period of time. Article 40 of the CRC recognises the right of a child accused of a criminal offence to be treated in a manner consistent with the promotion of the child's sense of dignity and which takes into account the child's age and the desirability of promoting the child's reintegration into society.

39. Terrorism carried out by a child has the same impact on the victims and society in general as that by an adult offender. A person who is convicted of a terrorism offence has been proven, to the satisfaction of the law, to be a danger to the community, irrespective of their age. Since 2014, the risk of children committing terrorism offences has emerged as a significant component of the ongoing threat of terrorism to our national security. As noted in the INLSM report, over 10 per cent of the total number of persons convicted of terrorism offences since 2014 were under the age of 18 at the time of offending, and a further 25% were between 18 and 25 (meaning that over a third of the total group of federal terrorism offenders were under the age of 25). Therefore it is necessary for the presumption against bail to continue to apply to children, and for the new presumption against parole to apply to children, just as the existing arrangements for bail and parole in the Crimes Act already apply to children.

40. The presumptions represent a legitimate response to the threat of terrorism and the need for preventative measures to protect Australia's national security and the rights of Australians. As set out above, the application of the presumptions against bail and parole to children is reasonable, proportionate and not arbitrary in accordance with Article 9 of the ICCPR. The presumptions are subject to the exercise of discretion as well as avenues for appeal or review. The Bill retains the right to challenge the lawfulness of detention in relation to bail decisions. Decisions of the Attorney-General are made in accordance with principles of procedural fairness and the existing judicial review avenues available to all federal offenders are maintained for those subject to the presumption against parole. Further, the decision maker, when considering whether exceptional circumstances exist to justify bail or parole, must take into account the best interests of the child as a primary consideration. When considering whether exceptional circumstances exist, the decision maker may take into account any relevant information. In particular, and without limiting the factors which the decision maker might consider, this provides the opportunity for the factors under Article 37 and 40 to be taken into account. The discretion available to decision makers, the avenues of appeal or review open to the children, and the requirement for decision makers to consider the best interests of the child as a primary consideration are safeguards for children who may be subject to the presumptions. These safeguards promote the principles underpinning Articles 3, 37 and 40 of the CRC, and ensure the presumptions against bail and parole are compatible with those Articles.

41. Section 19AG of the Crimes Act applies to adults and children convicted of a terrorism offence once a court has determined that imprisonment is the only appropriate penalty and to impose a term of imprisonment for a terrorist offence. In determining the head sentence, the court will have already taken into account a child's individual circumstances, together with other factors relevant to the offender and the offending, consistent with Article 3 of the CRC. In doing so, the sentencing judge would balance providing adequate opportunity for the child's rehabilitation with the need for deterrence and community protection, consistent with Articles 37 and 40 of the CRC. In particular, it is important that sentences of imprisonment for terrorist offenders, including children, include sufficient time for offenders to complete rehabilitation programs specific to their offending.

42. The amendments to section 19AG provide an additional safeguard for children, consistent with Articles 3, 37 and 40 of the CRC. Under the amendment, the court, where it has determined that a sentence of imprisonment is the appropriate sentence for a person under the age of 18 years convicted of a terrorism offence, must fix a non-parole period of three quarters of the head sentence unless exceptional circumstances exist to justify a lower non-parole period. The best interests of the child are a primary consideration for the court in considering whether exceptional circumstances exist, consistent with Article 3 of the CRC, with protection of the community being the paramount consideration. The court, when determining whether exceptional circumstances exist to justify a lower non-parole period, is able to take into account any relevant information. In particular, and without limiting the factors which the court might consider, this provides the opportunity for the factors under Article 37 and 40 to be taken into account, among other matters. This provides an element of discretion to the sentencing court when setting a non-parole period for a child convicted of a terrorism offence, while retaining the intention of section 19AG, which is to reflect the community's concern about terrorism and ensure consistent application of non-parole periods for these offences which are in the most serious category. In this way, this amendment promotes the principles underpinning, and the fundamental rights and freedoms protected by Articles 3, 37 and 40 of the CRC, and ensures the amendments are compatible with the those Articles.

Prohibition on the retrospective operation of criminal laws in Article 15 of the ICCPR

43. Article 15 of the ICCPR prohibits the imposition of 'a heavier penalty ... than the one that was applicable at the time when the criminal offence was committed'. It may be perceived that the changes introduced by the new section 19ALB might result in a person serving a longer period in prison before being eligible for parole, that is, the imposition of a heavier penalty for the purposes of Article 15 of the ICCPR.

44. However, this is not the case. The presumption against parole will not result in an offender serving a longer sentence of imprisonment than he or she may have under the existing provisions of the Crimes Act. This is because release on parole for federal offenders is already at the discretion of the Attorney-General. Further, the presumption is rebuttable and is not a blanket prohibition on parole for terrorists and terrorism-related offenders. Therefore, Schedule 1 does not engage the prohibition on the retrospective operation of criminal laws in Article 15 of the ICCPR.

Right to freedom of expression under Article 19(2) of the ICCPR

45. The Parliamentary Joint Committee on Human Rights (PJCHR) in its Report No. 2 of 2019 states that:

By introducing a presumption against bail and a presumption against parole for persons who have made statements or carried out activities supporting, or advocating support for, terrorist acts, the measures engage and may limit the right to freedom of expression. This is because a person may be less likely to express certain ideas due to the risk of it impacting their opportunity to be granted bail or parole.

46. The right to freedom of expression is protected in Article 19(2) of the ICCPR. The right may be limited for the purpose of protecting national security, public order or public health or morals, as allowed by Article 19(3).

47. A person who is convicted of a terrorism offence has been proven, to the satisfaction of the law, to be a danger to the Australian community. A person who is subject to a control order has been identified by law enforcement and the courts as posing a risk to society. The threshold for the use of control orders is very high. Similarly, where a person has shown support for or advocated support for terrorist acts, then in the interests of protecting national security and public safety it is appropriate that the decision maker can take this factor into account when considering bail or parole, regardless of the current offence that the person has been charged with or convicted of. It is essential that decision makers at the key steps in the criminal justice process of bail and parole are able to take into account a person's prior actions, where those prior actions indicate a terrorism-related risk to the community, and notwithstanding that the court may be considering the person for bail or parole for a seemingly unrelated federal offence(s). This is because disruption and prevention are at the core of protecting Australians from the threat posed by terrorism and protecting Australia's national security.

48. To the extent that the right to freedom of expression might be said to be indirectly engaged by Schedule 1 of the Bill, the inclusion of terrorist offenders and terrorism-related offenders under the presumptions against bail and parole protects and promotes the rights of people in the community whose life, liberty and property would be imperilled by the commission of terrorism offences. It is necessary to include this set of persons under the presumptions against bail and parole as part of Australia's efforts to combat the evolving nature of the threat posed by terrorism and the need to protect the community from this threat. Additionally, the measures are reasonable and proportionate because both the presumption against bail and parole are subject to the exercise of the court's discretion and avenues for review, as set out above. Therefore, to the extent that the right to freedom of expression might be said to be indirectly engaged, these important safeguards ensure these measures are consistent with Article 19 of the ICCPR.

Right to freedom of association under Article 22 of the ICCPR

49. The existing presumption against bail is expanded by the Bill to include persons charged with, or convicted of, an offence of associating with a terrorist organisation pursuant to section 102.8 of the Criminal Code. The presumption against parole will also apply to such offenders. The PJCHR in its Report No. 2 of 2019 suggests that the presumption against bail and parole proposed in Schedule 1 may engage the right to freedom of association of persons who have been charged with or convicted of an offence of associating with a terrorist organisation under the Criminal Code. The Committee suggested that this right may be engaged for such persons because they will be 'at risk of having their bail and parole impacted based on their association with others'.

50. The right to freedom of association is protected in Article 22 of the ICCPR. The right may be limited when prescribed by law and necessary in the interests of national security, public safety and public order, or for the protection of public health, morals or the rights and freedoms of others, as allowed by Article 22(2).

51. As noted above, a person who is convicted of a terrorism offence - including the offence of associating with a terrorist organisation in section 102.8 of the Criminal Code - has been proven, to the satisfaction of the law, to be a danger to the Australian community. The presumption against bail and parole is an important legislative tool under the core counter-terrorism strategy of disruption and prevention. It is essential that decision makers at the key steps in the criminal justice process of bail and parole are able to take into account a person's prior actions, where those prior actions indicate a terrorism-related risk to the community. Due to the severity of the danger posed by terrorists and terrorist organisations, it is necessary to limit the rights of individuals who, by their association with a terrorist organisation, pose a threat to Australians, in the form of a presumption against their bail or parole. Limiting the freedom of association of persons charged with or convicted of any other terrorism offence within the meaning of Part 5.3 of the Criminal Code under the presumptions against bail and parole is a legitimate response to the need to protect the community and Australia's national security from the evolving nature of the threat posed by terrorism.

52. To the extent that the right to freedom of association might be said to be indirectly engaged by Schedule 1 of the Bill, the inclusion of this set of offenders under the presumptions against bail and parole protects and promotes the rights of people in the community whose life, liberty and property would be imperilled by the commission of terrorism offences. It is necessary and legitimate to include this set of persons under the presumptions against bail and parole as part of Australia's efforts to combat the evolving nature of the threat posed by terrorism and the need to protect the community from this threat.

53. Additionally, the measures are reasonable and proportionate because both the presumption against bail and parole are subject to the exercise of the court's discretion and avenues for review, as set out above. Therefore, to the extent that the right to freedom of association might be said to be indirectly engaged by Schedule 1, these important safeguards ensure these measures are consistent with Article 22 of the ICCPR.

SCHEDULE 2 - AMENDMENTS RELATING TO CONTINUING DETENTION ORDERS

54. The Bill amends the existing CDO scheme by:

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expanding eligibility for the scheme by ensuring that terrorist offenders who are currently serving a period of imprisonment for a terrorism offence and another offence remain eligible for consideration for a CDO at the conclusion of their term of imprisonment, and

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amending the information disclosure obligations in respect of CDO applications to better align the protections available for sensitive national security information with those available in other contexts, such as criminal proceedings.

The right to freedom from arbitrary detention and the right to liberty of the person in Article 9 of the ICCPR

55. The effect of a CDO is to commit the person who is the subject of the order to detention in a prison for the period the order is in force. The Bill expands eligibility for the CDO scheme by providing that terrorist offenders who are serving concurrent or cumulative sentences for an eligible terrorism offence and another offence remain eligible for consideration for a CDO at the conclusion of their sentence of imprisonment.

56. Expanding the CDO scheme engages the right to freedom from arbitrary detention and the right to liberty of the person in the following ways.

The right not to be deprived of liberty except on such grounds and in accordance with such procedures as are established by law in Article 9(1) of the ICCPR

57. Article 9(1) of the ICCPR provides that no-one shall be deprived of their liberty except on such grounds and in accordance with such procedures as are established by law. CDOs engage this right because they authorise detention.

58. Detention under a CDO is authorised by and operates in accordance with the procedures prescribed in Division 105A.

59. Accordingly, the eligibility of a new class of terrorist offender for CDOs complies with the requirement in Article 9(1) that deprivation of liberty not occur except in accordance with grounds and procedures prescribed by law. To the extent that the Bill engages that right, it is consistent with it.

The right to freedom from arbitrary detention in Article 9(1) of the ICCPR

60. Article 9(1) of the ICCPR provides that no-one shall be subjected to arbitrary arrest or detention. CDOs engage the right to freedom from arbitrary detention because they authorise detention.

61. Article 9 regulates, rather than prohibits, detention-it is only 'arbitrary' detention that is prohibited. Arbitrariness includes the elements of inappropriateness, injustice and a lack of predictability. Detention will not be arbitrary where, in all the circumstances, it is appropriate, justifiable, reasonable, necessary and proportionate to a legitimate end. Detention may be arbitrary where there are less restrictive alternatives available. Preventative detention is not arbitrary per se and may be consistent with Article 9 if it is ordered by a court and is limited to a period during which it is justified by compelling reasons that are reviewable by a judicial authority.

62. In considering the appropriateness of post-sentence preventative detention regimes, the United Nations Human Rights Committee has stated that:

...to avoid arbitrariness, the additional detention must be justified by compelling reasons arising from the gravity of the crimes committed and the likelihood of the detainee's committing similar crimes in the future. States should only use such detention as a last resort and regular periodic reviews by an independent body must be assured to decide whether continued detention is justified. State parties must exercise caution and provide appropriate guarantees in evaluating future anger. The conditions in such detention must be distinct from the conditions for convicted prisoners serving a punitive sentence and must be aimed at the detainee's rehabilitation and integration into society. ^[1]

63. Based on the above criteria, the preventative detention authorised by a CDO cannot be described as 'arbitrary'. The objective of the scheme (to ensure the safety and protection of the community by providing for the continuing detention of terrorist offenders who pose an unacceptable risk of committing serious terrorism offences) is legitimate and consistent with the purposes of the ICCPR. By continuing to detain terrorist offenders who pose an unacceptable risk of committing serious terrorism offences, the scheme protects and promotes the rights of people in the community whose life, liberty and property would be imperilled by the commission of serious terrorism offences.

64. The CDO scheme includes numerous features designed to ensure that detention is only authorised where it is non-arbitrary, including additional safeguards that were added during parliamentary consideration of the originating Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016. These address the considerations set out by the United Nations Human Rights Committee by:

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Establishing processes by which a court, when deciding an application for or reviewing a CDO, must have regard to a range of matters rationally connected with the level of risk posed by the terrorist offender (for example, their degree of participation in rehabilitation programs), including the evidence of an independent expert competent to assess the risk posed by the terrorist offender (section 105A.8).

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Providing that, for a terrorist offender to be subject to a CDO, the court must be satisfied to a high degree of probability, on the basis of admissible evidence, that the offender poses an unacceptable risk of committing a serious terrorism offence if the offender is released into the community (paragraph 105A.7(1)(b)).

To assist the court in making this decision, the court may appoint a relevant expert to conduct an assessment of the risk of the offender committing a serious terrorism offence if they were released into the community (section 105A.6). An example of an expert who may be appointed by the court could be a person with expertise in forensic psychology or psychiatry (and, in particular, recidivism) coupled with specific expertise on terrorism, radicalisation to violent extremism and countering violent extremism. The court must have regard to the expert's opinion when making its decision (paragraph 105A.8(1)(b)).

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Stating that a court can only make a CDO if satisfied that there is no less restrictive measure that would be effective in preventing the unacceptable risk posed by the terrorist offender (paragraph 105A.7(1)(c)). An example of this is a control order under Division 104 of the Criminal Code.

Such an order may require a person to participate in specified counselling, subject to their consent (see section 104.5). Further a court must have regard to any treatment or rehabilitation program in which the offender has had an opportunity to participate (paragraph 105A.8(e)).

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Providing for annual review by requiring the AFP Minister to apply to the Supreme Court for a review of a CDO (at the end of the period of 12 months after the order began to be in force, or 12 months after the most recent review ended) (section 105A.10). Failure to make this application will mean that the CDO ceases to be in force.

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Recognising that the terrorist offender is not serving a sentence of imprisonment by providing that, when subject to a CDO, he or she be housed separately from persons who are in prison for the purposes of serving a sentence of imprisonment, except in certain circumstances such as where the offender's treatment or accommodation arrangements could compromise the management, security and good order of the prison, for rehabilitation purposes or for the safety and protection of the community (section 105A.4).

65. Additional safeguards contained in the provisions provide that:

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only a limited class of persons can be subject to the CDO scheme and the characteristic used to define that class (imprisonment for a terrorism-related offence) is rationally connected with the scheme's protective purpose

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only the AFP Minister, or their legal representative, can apply for a CDO

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the terrorist offender must be provided with certain documents to enable him or her to prepare for the court's hearing of an application for a CDO

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the power to make a CDO lies with an independent judicial authority (the Supreme Court of the relevant state or territory) bound to apply the rules of evidence and procedure applicable in civil matters

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the terrorist offender can adduce evidence and make submissions in court proceedings

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the AFP Minister bears the onus of satisfying the court that a CDO should be made and, if reviewed, that a CDO should be affirmed

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the period of detention authorised by a CDO must be limited to a period that is reasonably necessary to prevent the unacceptable risk, and must not exceed three years

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the period of detention authorised by an interim detention order must be limited to a period that is reasonably necessary to determine the application for a CDO and not exceed 28 days and the total period of detention authorised by consecutive interim detention orders must not exceed three months, and

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the court must provide reasons for decisions in an application for a CDO, or in a review of a CDO, and these decisions can be appealed.

66. Accordingly, the extension of eligibility for CDOs to terrorist offenders serving concurrent or cumulative sentences for other offences complies with the right to freedom from arbitrary detention in Article 9(1) of the ICCPR. To the extent that the measures engage that right, it is consistent with it.

The right to take proceedings before a court, in order that the court may decide without delay on the lawfulness of detention in Article 9(4) of the ICCPR

67. Article 9(4) of the ICCPR provides that persons deprived of their liberty must be able to challenge the legality of their detention in court. This includes an implied requirement that a terrorist offender be provided with information sufficient to enable them to know the nature of, and lead evidence to refute, the case against them.

68. The Bill engages this right by providing that the 'complete copy' of the CDO application that is given to the terrorist offender is subject to PII and any certificate that the Attorney-General issues under the NSI Act or order made by the court. This may result in certain information being withheld from the offender, or provided in a redacted or summarised form (though the AFP Minister will only be able to rely on evidence in seeking a CDO where they have provided that evidence to the terrorist offender).

69. These measures seek to achieve the legitimate objective of protecting Australia's national security. The inappropriate disclosure of national security information has the potential to prejudice Australia's national security and the security of all Australians. Information relevant to CDO proceedings may disclose sensitive sources and capabilities employed by security agencies to lawfully obtain information about terrorist activities. Revealing this information to the terrorist offender risks jeopardising ongoing counter-terrorism and national security investigations and has consequences for the safety of human sources. Accordingly, the measures in the Bill to improve the protection of sensitive information in CDO proceedings are necessary to achieve this legitimate objective.

70. Making the 'complete copy' of the CDO application subject to court orders relating to the protection of information in that application is reasonable, necessary and proportionate to the objective of protecting Australia's national security.

71. The AFP minister must give written notice to the terrorist offender personally stating that the information has been excluded on the basis of PII. The notice must be given at the time the copy of the application is given to the offender. The terrorist offender may then seek to access that information, for example through a subpoena. In order to prevent disclosure of that information, the AFP Minister, or a relevant operational agency, would then be required to make and substantiate a claim for PII to the court. It would then be a matter for the court to determine whether the PII claim should be upheld, balancing the public interest in ensuring the terrorist offender receives a fair hearing by receiving information relevant to the CDO proceeding, with the public interest in ensuring there is no prejudice to national security. Nothing in the Bill obliges an offender, who has sought to access material over which PII has been claimed, to satisfy the Court that the PII claim should not be upheld.

72. The mechanisms through which information may be protected are overseen by the courts. Neither claims of PII nor the orders available under the NSI Act for CDO proceedings allow for the court to take into account evidence that has not also been given to the terrorist offender. Instead, these mechanisms allow the court to consider the sensitive information and the potential harm from its disclosure and weigh that against the public interest in the terrorist offender receiving all relevant material. After making this assessment, the court may make orders providing for the redaction of sensitive material, the summarising of information to remove sensitivities or that the material be disclosed to the terrorist offender. This means that the AFP Minister will not be able to rely on evidence that is not put to the terrorist offender. It will be open to a court to stay proceedings entirely if it is satisfied that withholding the information in question would involve unacceptable injustice or unfairness.

73. Accordingly, to the extent that the amendments permit limitations on the rights of terrorist offenders under Article 9(4), the limitations are reasonable, necessary and proportionate to achieve the legitimate objective of protecting sensitive information.

Right to a fair trial and fair hearing under Article 14 of the ICCPR

74. Article 14(1) of the ICCPR provides that, in the determination of a person's rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.

75. Both measures in Schedule 2 engage this right.

Expanded eligibility for the CDO scheme

76. The Bill expands eligibility for the CDO scheme by providing that terrorist offenders who are serving concurrent or cumulative sentences for an eligible terrorism offence and another offence remain eligible for consideration for a CDO at the conclusion of their sentence of imprisonment. These offenders may be subject to CDO proceedings.

77. Division 105A requires CDO proceedings to be heard by the Supreme Court of a state or territory and for the court to apply the rules of evidence and procedure applicable in civil proceedings. This reflects the purpose of the continuing detention scheme, which is not to punish but rather detain an offender for the purpose of protecting the community. In light of this intention, the civil nature of the proceedings and the lack of a criminal charge in each case, the minimum guarantees outlined in Article 14(2) and (3) of the ICCPR do not apply. Despite this, the important safeguards contained within the CDO scheme are described below.

78. The terrorist offender must be provided with certain documents (the application for a CDO, including the report of a relevant expert (subsection 105A.5(4)), and the reasons for a decision in CDO proceeding (paragraph 105A.16(c)) to enable him or her to prepare for and respond to court rulings. The terrorist offender can adduce evidence and make submissions. The terrorist offender has the benefit of provisions at subsections 105A.7(3) and 105A.12(6), which put the onus on the AFP Minister to satisfy the court that the relevant threshold for the grant of a CDO is met, and provisions at paragraphs 105A.7(1)(c) and 105A.12(4)(b), that there are no less restrictive alternatives available.

79. Section 105A.16 further requires that if a court makes a CDO decision, the court must state the reason for its decision and cause those reasons to be entered in the records of the court-this accords with the requirement in Article 14(1) that any judgement rendered in a suit at law shall be made public.

80. Article 14(7) provides that no one shall be liable to be tried or punished again for an offence for which he or she has already been finally convicted in accordance with the law and penal procedure of the country.

81. The Bill does not engage this right as the continued detention of a terrorist offender under the CDO scheme does not constitute additional punishment for their prior offending - the continued detention is protective rather than punitive or retributive.

82. As well as being defined explicitly in Subdivision A of Division 105A, the scheme's protective purpose is reflected in numerous features of the scheme including the grounds on which a CDO may be made or affirmed; the matters to which the court must have regard when making or reviewing a CDO; the requirement to consider less restrictive measures and the requirement that the period of detention authorised by a CDO be limited to a period that is reasonably necessary to prevent the unacceptable risk.

83. The fact that the effect of a CDO is to commit the terrorist offender to detention in a prison does not render the detention punitive. The CDO scheme nominates these facilities as the place of detention because they have the infrastructure necessary to appropriately manage terrorist offenders who pose an unacceptable risk of committing serious terrorism offence if released into the community. Further, the scheme provides that, subject to certain exceptions (related to the management of the prison, the safety of others and the offender's preferences), terrorist offenders detained in a prison under a CDO must be treated in a way that is appropriate to their status as persons who are not serving a sentence of imprisonment and must not be accommodated or detained in the same area or unit of a prison as persons serving sentences of imprisonment.

84. Accordingly, the detention scheme does not further punish those convicted of terrorism offences and Article 14(7) of the ICCPR is not engaged.

Protection of sensitive information

85. Article 14 also includes 'equality of arms' in proceedings, which requires that all parties to a proceeding have a reasonable opportunity of presenting their case under conditions that do not disadvantage them as against other parties in the proceeding. The Bill engages this right by amending the existing safeguards to establish information protection mechanisms for CDO proceedings.

86. This measure seeks to achieve the legitimate objective of protecting Australia's national security. As noted above, the inappropriate disclosure of national security information has the potential to prejudice Australia's national security and the security of all Australians. Information relevant to CDO proceedings may disclosure sensitive sources and capabilities employed by security agencies to lawfully obtain information about terrorist activities. Revealing this information to the terrorist offender risks jeopardising ongoing counter-terrorism and national security investigations and has consequences for the safety of human sources. Accordingly, the measures in the Bill to improve the protection of sensitive information in CDO proceedings are necessary to achieve this legitimate objective.

87. To achieve this objective, the Bill amends the requirement to provide that the 'complete copy' of the CDO application that is provided to the terrorist offender is subject to any court orders made relating to the protection of information in that application, including in relation to claims for PII or under the NSI Act. This may result in certain information being withheld from the terrorist offender, or provided in a redacted or summarised form.

88. Making the 'complete copy' of the CDO application subject to court orders relating to the protection of information in that application is reasonable, necessary and proportionate to the objective of protecting sensitive information in CDO proceedings.

89. The AFP minister must give written notice to the terrorist offender personally stating that the information has been excluded on the basis of PII. The notice must be given at the time the copy of the application is given to the offender. The terrorist offender may then seek to access that information, for example through a subpoena. In order to prevent disclosure of that information, the AFP Minister, or a relevant operational agency, would then be required to make and substantiate a claim for PII to the court. It would then be a matter for the court to determine whether the PII claim should be upheld, balancing the public interest in ensuring the terrorist offender receives a fair hearing by receiving information relevant to the CDO proceeding, with the public interest in ensuring there is no prejudice to national security. Nothing in the Bill obliges an offender, who has sought to access material over which PII has been claimed, to satisfy the Court that the PII claim should not be upheld.

90. The mechanisms through which information may be protected are overseen by the courts. Neither claims of PII nor the orders available under the NSI Act for CDO proceedings allow for the court to take into account evidence that has not also been given to the terrorist offender. Instead, these mechanisms allow the court to consider the sensitive information and the potential harm from its disclosure and weigh that against the public interest in the terrorist offender receiving all relevant material. After making this assessment, the court may make orders providing for the redaction of sensitive material, the summarising of information to remove sensitivities or that the material be disclosed to the terrorist offender. This means that the AFP Minister will not be able to rely on evidence that is not put to the terrorist offender. It will be open to a court to stay proceedings entirely if it is satisfied that withholding the information in question would involve unacceptable injustice or unfairness.

91. Accordingly, to the extent that the amendments limit the rights of terrorist offenders under Article 14 of the ICCPR, the limitations are reasonable, necessary and proportionate to achieve the legitimate objective of protecting sensitive information.

Prohibition on the retrospective operation of criminal laws in Article 15 of the ICCPR

92. Article 15 of the ICCPR provides that no one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time it was committed. Article 15 also prohibits the imposition of a heavier penalty than the one that was applicable at the time when the criminal offence was committed. To be eligible for a CDO, a person must be a 'terrorist offender'. To meet this definition, a person must:

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have been convicted of a specified offence listed in paragraph 105A.3(1)(a) (eligible terrorism offence)

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be detained in custody serving a sentence for the eligible offence (or is already subject to a CDO), and

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be at least 18 years old when their sentence for the eligible offence ends.

93. Paragraph 105A.5(2)(a) currently provides that the AFP Minister may only apply for a CDO in relation to a terrorist offender not more than 12 months before the end of their sentence for the eligible terrorism offence, at the end of which they would be required to be released into the community. The wording of this provision creates a gap where an otherwise eligible offender who is convicted and sentenced for a further offence that expires after the eligible sentence, cannot be the subject of a CDO application.

94. The Bill addresses this unintended gap and ensures that terrorist offenders who are serving concurrent or cumulative sentences for an eligible terrorism offence and another offence remain eligible for consideration for a CDO at the conclusion of their sentence of imprisonment. This will apply to persons convicted of an eligible terrorism offence whose term of imprisonment for that offence has expired but remain in prison for another offence. Item 17 of Schedule 2 of the Bill provides that offenders who are serving a sentence of imprisonment either concurrently or cumulatively (or both) for an offence that is not an eligible terrorism offence, and who have been detained continuously since being convicted of the eligible terrorism offence, will be eligible for a CDO.

95. While the continued detention of terrorist offenders who previously would not have been eligible for a CDO engages the prohibition on the retrospective operation of criminal laws, it does not constitute a prohibited form of retrospective punishment or the imposition of a penalty for an offence heavier than that which was applicable at the time the offence was committed.

96. In this context, the continued detention is protective rather than punitive or retributive. The protective purpose of the scheme is reflected in numerous features including the grounds on which a CDO may be made or affirmed; the matters to which the court must have regard when making a CDO; the requirement to consider less restrictive measures; and the requirement that the period of detention authorised by a CDO be limited to a period that is reasonably necessary to prevent the unacceptable risk.

97. When determining whether to make a CDO, the court must be satisfied to a high degree of probability, on the basis of admissible evidence, that the offender poses an unacceptable risk of committing a serious Part 5.3 offence if the offender is released into the community. This is the risk the person presents to the community at the end of their sentence. Preventative detention imposed on this basis does not constitute a violation of the prohibition on the retrospective operation of criminal law.

98. The fact that the effect of a CDO is to commit the terrorist offender to detention in a prison does not render the detention punitive. As such, the Bill does not engage the prohibition on the retrospective operation of criminal laws in Article 15 of the ICCPR.

The right to be treated with humanity and dignity in Article 10 of the ICCPR

99. The Bill expands eligibility for the CDO scheme by providing that terrorist offenders who are serving concurrent or cumulative sentences for an eligible terrorism offence and another offence remain eligible for consideration for a CDO at the conclusion of their sentence of imprisonment.

100. Article 10(1) of the ICCPR provides that all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person. The CDO scheme may be considered to engage this obligation as it involves detention.

101. Article 10(2)(a) provides that 'accused persons' must, save in exceptional circumstances, be segregated from convicted persons and be subject to separate treatment appropriate to their status as unconvicted persons. These obligations do not apply to the CDO scheme directly as the scheme does not involve the detention of 'accused persons'. The grounds for detention under a CDO are not connected with the laying of or determination of a criminal charge.

102. Despite these obligations not applying to the CDO scheme, section 105A.4 sets out the minimum standards of treatment that must be afforded to a terrorist offender who is detained under a CDO. This includes that the offender must be treated in a way that is appropriate to his or her status as a person who is not serving a sentence of imprisonment (subsection 105A.4(1)) and that, subject to certain exceptions, the offender must not be accommodated or detained in the same area or unit of the prison as persons who are in prison for the purpose of serving sentences of imprisonment (subsection 105A.4(2).

103. By mandating appropriate standards of treatment and accommodation arrangements, the CDO scheme promotes the rights of terrorist offenders detained under the scheme to be treated with humanity and respect for the inherent dignity of the human person. While the CDO scheme permits deviation from these standards, it does so only where necessary to protect the safety or rights of others, or to reflect the terrorist offender's wishes. To the extent that the scheme permits limitations on the rights of terrorist offenders under Article 10(1), the limitations are reasonable, necessary and proportionate to achieve legitimate objectives of the scheme.

The right to freedom from arbitrary or unlawful interference with privacy in Article 17 of the ICCPR

104. The Bill expands eligibility for the CDO scheme by providing that terrorist offenders who are serving concurrent or cumulative sentences for an eligible terrorism offence and another offence remain eligible for consideration for a CDO at the conclusion of their sentence of imprisonment.

105. When hearing an application for, or reviewing, a CDO the court has the power to appoint one or more experts to assess the risk of the terrorist offender committing a serious Part 5.3 offence if released into the community. Where an expert is appointed, the offender is required to attend the expert's assessment. The court is required to explain to the offender the effect of this requirement, and in deciding whether to make or affirm a CDO, the court will have regard to the expert's report and the level of the offender's participation in the assessment by the expert.

106. The right to be free from arbitrary or unlawful interference with privacy in Article 17(1) of the ICCPR. Article 17(1) provides that no one shall be subjected to arbitrary or unlawful interference with his or her privacy.

107. The requirement that the terrorist offender attend an assessment does not engage this right. The terrorist offender is under no obligation to participate in the assessment or to disclose any private information. The fact that the court must consider the level of the terrorist offender's participation in the expert's assessment does not create a de facto obligation to participate. Participation in the expert's assessment is not the only means by which the terrorist offender can seek to influence the outcome of the court's consideration of an application for, or review of, a CDO; the terrorist offender can adduce his or her own evidence and make submissions.

108. Accordingly, the requirement that the terrorist offender attend an assessment with the expert does not engage Article 17(1) of the ICCPR.

Conclusion

109. While the Bill engages a range of human rights, it is compatible with human rights because to the extent that it limits some rights, those limitations are reasonable, necessary and proportionate in achieving a legitimate objective.