Review of Division 105A of the Criminal Code Act 1995 (Cth)
The submission to the Independent National Security Legislation Monitor in response to its Review of Division 105A of the Criminal Code Act 1995 (Cth) was prepared by the Law Council of Australia.
The Law Council’s policy position on Division 105A is set out in its recent submissions to the Parliamentary Joint Committee on Intelligence and Security (PJCIS), as part of the following inquiries of that Committee, which were completed in 2021:
- a statutory review of police powers in relation to terrorism, including the continuing detention order (CDO) regime in Division 105A of the Criminal Code, pursuant to paragraph 29(1)(cb) of the Intelligence Services Act 2001 (Cth) (AFP powers review);1 and
- a concurrent review of the Counter-Terrorism Legislation Amendment (HighRisk Terrorist Offenders) Bill 2021 (HRTO Bill), which was passed and commenced in December 2021. The HRTO Bill sought to establish a regime of ‘extended supervision orders’ (ESOs) under Division 105A as less restrictive alternatives to CDOs (HRTO Bill review).2 The resulting Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Act 2021 (Cth) (HRTO Act) implemented a Government response to recommendations made by your predecessor, Dr James Renwick SC, in 2017 for the establishment of an ESO regime. 3 The HRTO Act also includes some of the amendments recommended by the PJCIS in the HRTO Bill review.
You can read the full submission below.
1 PJCIS, Advisory report on the AFP powers review, (October 2021).
2 PJCIS, Advisory report on the HRTO Bill, (September 2021).
3 J Renwick SC, Third INSLM, Report on the Review of Divisions 104 and 105 of the Criminal Code (including the interoperability of Divisions 104 and 105A): Control Orders and Preventative Detention Orders, (7 September 2017), Chapter 9, especially pp. 76-77 at [9.40]-[9.47].