Commonwealth of Australia Explanatory Memoranda

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CRIMINAL CODE AMENDMENT (HIGH RISK TERRORIST OFFENDERS) BILL 2016

                                    2016




      THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA




                                  SENATE




CRIMINAL CODE AMENDMENT (HIGH RISK TERRORIST OFFENDERS) BILL
                           2016




         ADDENDUM TO THE EXPLANATORY MEMORANDUM




                        (Circulated by authority of the
         Attorney-General, Senator the Honourable George Brandis QC)


CRIMINAL CODE AMENDMENT (HIGH RISK TERRORIST OFFENDERS) BILL 2016 The purpose of this addendum is to provide additional material to the Explanatory Memorandum to the Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016. This addendum responds to Recommendations 7,10 and 14 made by the Parliamentary Joint Committee on Intelligence and Security in its Advisory Report on the Criminal Code Amendments (High Risk Terrorist Offenders) Bill 2016 (4 November 2016). STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS Overview of the Bill On page 3, at the end of paragraph 8, insert the following new sentence: "Consistent with section 100.6 of the Criminal Code, this scheme will operate concurrently with State and Territory regimes that provide for post-sentence supervision or detention of dangerous offenders." NOTES ON CLAUSES Schedule 1 - Criminal Code Act 1995 Criminal Code Overview On page 17, paragraph 94, after the words: "The Court may" insert: ", at any point during continuing detention order proceedings,". Section 105A.2 - definition of 'relevant expert' On page 18, at the end of paragraph 104, insert the following new paragraph: "Paragraphs (a) to (c) allow for registered medical practitioners, psychiatrists and psychologists to be appointed as experts. Paragraph (d) provides the Court with the flexibility to appoint 'any other expert' provided they are competent to assess the risk of a terrorist offender committing a serious offence under Part 5.3 of the Criminal Code. An example of an expert that could fall under paragraph (d) is a criminologist who:  has a relevant PhD level qualification  has demonstrated understanding of the use and methodology of risk assessment tools  has experience with or knowledge of individuals radicalised to violent extremism, or  has demonstrated understanding of criminal recidivism. Paragraph (d) could also include individuals with qualifications from other related fields." 2


Section 105A.6 - Appointment of and assessment by relevant expert On page 20, in paragraph 118, after the words: "The decision to appoint an expert is at the Court's discretion" insert: "and the Court can decide to appoint an expert at any point during continuing detention order proceedings". Section 105A.17 - Right of Appeal On page 25, in paragraph 147, after the word "order" insert "decision". On page 25, after paragraph 148, insert the following new paragraphs: "When rehearing the matter, the court of appeal may:  subject to the subsection (e.g. subject to the stipulation that the appeal is to be by way of rehearing), exercise or perform all the powers, functions and duties that the Court appealed from had in relation to relevant continuing detention order proceedings,  draw inferences of fact which are not inconsistent with the findings of the Supreme Court, and  may receive further evidence as to questions of fact if the court of appeal is satisfied that there are special grounds for doing so. Stipulating that the appeal is to be 'by way of rehearing' indicates that the court of appeal could not substitute its discretionary opinion for that of the Court that made the continuing detention order decision unless the Court made the decision in error (for example, the Court mistook the facts, or the Court did not take into account a material consideration). Paragraph 105A.17(2)(c) indicates that the court of appeal must decide the appeal based on the facts that were before the original Court unless it is satisfied there are special grounds for receiving further evidence. It is a matter for the court of appeal to determine whether special grounds are established depending upon the particular circumstances of the case. For example, the court of appeal could decide that there are special grounds for receiving further evidence because there has been a significant lapse of time between the decision of the Court that made the continuing detention order decision and the court of appeal's consideration of the matter." 3


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