Federal Parliament - Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2020

October 19, 2021

Dr ALY[by video link] The Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2020 allows the courts to make an extended supervision order for high-risk terrorist offenders that applies for up to three years upon their release from prison. As those who have spoken before me on this bill would have noted, there is already a provision for post-sentencing powers that currently exist in the form of the continuing detention order. Since that bill was introduced, such an order has been issued only once. This is a less restrictive measure, but it applies where the court considers there is a high degree of probability that an offender will commit a terrorist offence. Under this order, unlike the continuing detention order, an offender would be released into the community at the end of their custodial sentence and be subject to a range of restrictive measures.

I welcome this bill because all too often we have seen terrorist attacks being carried out by individuals who have already served a sentence for a terrorist offence or a terrorism related offence or who are known to security agencies. In November 2020, there was a terrorist attack in Vienna. That attack was carried out by an individual who had been previously sentenced to 22 months for trying to leave Vienna to join ISIS. He was known to police and he was known to security agencies across at least two countries. He was paroled after serving only eight months of his sentence, upon agreement that he would take part in a deradicalisation program. Despite being assessed as a high-risk terrorist offender and despite being assessed as still holding ideologies and still holding willingness and intent to commit a terrorist act, he was released from prison.

Among the PJCIS recommendations on this bill is a recommendation to include an independent review of risk assessment tools that evaluate the risk of reoffending or continued offending for terrorist actors. I especially welcome this recommendation, and I'm pleased to see that the government has accepted this recommendation and will commission the Department of Home Affairs to carry out an independent review. Further examination and analysis of the assessment tools we use in assessing the risk of a terrorist act is absolutely essential. The Austrian terror actor was also subject to the same risk assessment protocols that we use here in Australia. He scored highly on the risk measure of expressed willingness to commit a terrorist act, but he was released because he willingly participated or agreed to participate in a deradicalisation program. This case highlights the need for a comprehensive review of how risk is assessed and the extent to which risk is assessed here in Australia as well as across other countries that use assessment tools for high-risk terrorist offenders.

The bill before us today, I believe, is essential addition to the toolbox of agencies and ensuring community safety from terrorism, especially where there is no guarantee or absolute confidence that an individual has fully deradicalised and has the supports in place to remain deradicalised. The fact is that radicalisation and deradicalisation are not linear or discrete processes that can be assured through participation in a specific program or assessed with 100 per cent accuracy through the implementation of some kind of checklist or assessment tool. Radicalisation is not just a matter of individual psychology, and many of the terrorist psychologies and profiles that have been put forward in the past have been debunked purely and simply because they rely too much on the assessment of individuals' psychology.

Equally, my previous criticisms of both assessment tools and deradicalisation programs are based on their focus on individual psychology, with no appreciation or no appreciable assessment of the social context or other push-and-pull factors in both radicalisation and deradicalisation. You can look at risk as an equation—an equation that has on one axis intent or willingness to carry out an attack and on another axis opportunity to carry out an attack. What this bill does in the absence of any perfect methodology or close-to-perfect methodology for assessing intent is remove opportunity.

We also have here in Australia a dearth of the expertise that's needed to adequately assess and confidently evaluate the ongoing risk that a perpetrator poses to commit or further commit a terrorist attack. A report by the International Centre for Counter-Terrorism at The Hague, published in 2019, looked at the different assessment methods for high-risk terrorist offenders and concluded that there was a lack of evaluation of those tools, including the tool that is used here in Australia to assess high risk offenders. The other factor is that the tool can actually be completed without ever having to interview the individual in question. Other tools that are available such as the ERG22+, which use the same methodology as the tool used here in Australia, can be completed by more than one assessor and can do so to eliminate subjectivity and ensure the robustness of the methodology.

I welcome this legislation for a number of other reasons, not the least those that I have mentioned with regard to our capacity and the fact that we simply cannot with 100 per cent confidence assess whether or not a high-risk terrorist offender will continue to offend or will undertake to prepare or carry out another terrorist attack upon release from prison. I do welcome that the government has accepted most of the recommendations that the Parliamentary Joint Committee on Intelligence and Security put forward for this bill. I'm sure that the shadow Attorney-General has spoken at length about those recommendations and about the work that the Parliamentary Joint Committee on Intelligence and Security did on this bill and, in particular, on the recommendation about the condition imposed on those who become subject to the post sentencing powers included in this bill.

I'm particularly looking forward, as I mentioned earlier, to the review that will be commissioned around our risk-assessment tools, and I welcome that the government has accepted most of those recommendations put forward. But I should also mention the government's departure from the recommendations that were put forward in September 2017 by the former Independent National Security Legislation Monitor, Dr James Renwick, when he recommended the introduction of this extended supervision order regime. His recommendations were particularly around the standard of proof, recommending that it should be a high degree of probability and not on the balance of probabilities as provided for in the bill. I think it's important to make the point that the government has departed from the recommendation made by the PJCIS that we adopt in full the recommendations made by Dr Renwick in his review, including around the high degree of probability as the standard of proof for an extended supervision order.

In closing, I commend this bill to the House. I also take the opportunity to commend the PJCIS chair and deputy chair—now former deputy chair—on the work that was put into this bill, as well as the other members of the PJCIS and the PJCIS secretariat.