Senate

Revised Explanatory Memorandum

(Circulated by authority of the Attorney-General, Senator the Honourable Michaelia Cash)

GENERAL OUTLINE

1. The Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2021 (the Bill) will strengthen Australia's counter-terrorism framework by amending Part 5.3 of the Criminal Code to establish an extended supervision order (ESO) scheme for high risk terrorist offenders. The scheme will complement the existing continuing detention order (CDO) scheme in Part 5.3 of the Criminal Code, and will enable Supreme Courts to make, as an alternative to a CDO, an ESO with respect to a high risk terrorist offender to prevent the risk they pose to the community at the end of their custodial sentence.

2. Under an ESO, a court may impose any conditions (prohibitions, restrictions or obligations) that it is satisfied on the balance of probabilities are reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the community from the unacceptable risk of the offender committing a serious Part 5.3 offence.

3. To support the implementation of the ESO scheme, this Bill also makes amendments to the National Security Information (Criminal and Civil Proceedings) Act 2004 to provide for the availability of court-only evidence in ESO proceedings, and to the Crimes Act 1914, the Telecommunications (Interception and Access) Act 1979 and the Surveillance Devices Act 2004 to extend the application of the existing control order monitoring warrant provisions to the monitoring of ESOs. It also makes consequential amendments to the Australian Security Intelligence Organisation Act 1979 and the Administrative Decisions (Judicial Review) Act 1977. The Bill also amends the Intelligence Services Act 2001 to provide that the Parliamentary Joint Committee on Intelligence and Security (PJCIS) may commence an inquiry into Division 105A of the Criminal Code within 12 months of the Independent National Security Legislation Monitor's report being completed.

FINANCIAL IMPACT

4. The Government is working with States and Territories to determine the cost implications of implementing the ESO scheme. Costs will be considered as part of implementing the scheme.