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."




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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."




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