The following is an edited summary of introductory remarks made to the Parliamentary Joint Committee on Intelligence and Security (PJCIS) today by ASPI executive director Justin Bassi, the head of ASPI’s counter terrorism program, John Coyne and Henry Campbell, the program’s coordinator. The committee is examining the operation, effectiveness and implications of Division 105A of the Criminal Code which is a key part of the legal framework for the management of convicted terrorists. The full ASPI submission is here. 

The issue of terrorism and how to both counter and respond to it has been a key part of ASPI’s work since the Institute was established in 2001.

From 9/11 and the Bali bombings, to the rise of ISIL and the threat of issue-motivated violence from the likes of white supremacists, a comprehensive approach is needed, including education, prevention, punishment and rehabilitation. Division 105A of the Criminal Code fits into a sophisticated legal framework for the post-sentence management of convicted terrorists.

An issue of foremost importance to the committee, and central to our submission, is whether continuing detention orders (CDOs) should remain part of this legislative framework.

The former Independent National Security Legislation Monitor (INSLM), Grant Donaldson, recommended in a report that CDOs be abolished. We consider this a misjudgement and urge the committee to disagree with the recommendation.

This does not mean that amendments are not needed. Indeed, the PJCIS is a part of the framework that ensures Australia’s national security and counter-terrorism legislation undergoes effective, continuous reform. And sometimes, laws should be abolished. But often, an ‘evolutionary’ approach of ongoing reform is better than a ‘start-stop’ approach that responds to incidents rather than prepares for them.

Instead of abolishing the entire CDO provision, the former INSLM’s concerns about the scheme’s risk assessment tool should prompt examination of, and any necessary reform to, that element. There is no existing or proposed substitute for CDOs. Eliminating them would therefore create a gap and expose the Australian community to greater risk.

Extended supervision orders (ESOs) are sometimes proposed as alternatives, but they are not the same. Supervision orders, while important, create greater risk to the community and are more resource-intensive for security agencies.

This was unfortunately demonstrated in the case of Ahamed Samsudeen in Auckland. Regarded as a terrorism risk, Samsudeen was under surveillance by New Zealand Police following his release from prison in July 2021. Surveillance and control orders could not stop Samsudeen from entering an Auckland supermarket on 3 September 2021 and grabbing a knife. It took the police surveillance team only one minute to realise he was launching an attack and a further 30 seconds to shoot him dead. But, in that time, he injured eight people.

New Zealand, notably, has terrorist control orders but no comparable CDO policy.

To be clear, CDOs are not a silver bullet, but they are a last-resort measure when a terrorist offender is judged as posing too high a risk if released.

Australia’s community safety results from a national security strategy that includes a legislative framework to address the full range of threats, not just those that are most common, likely or current.

This framework must be able to respond to future threats, with the expectation that certain threats, such as terrorist plots, are prevented, not responded to once they’ve happened.

In addition to the focus on the risk assessment tool, the former INSLM’s recommendation to remove CDOs from the framework was based in part on the view that Australia faces a reduced threat environment, writing in his official report: ‘It is my judgment that CDOs are not proportionate to the threat of terrorism and are not necessary.’

We have made the mistake before of examining security in the context of current circumstances as though they are static. One example is the 2013 National Security statement, which effectively called an end to the era of terrorism, only to see the rise of ISIL that same year and, in 2014, the increase of Australia’s terrorism threat level to HIGH. While Australia’s terrorism threat level is now at POSSIBLE, reduced from PROBABLE in 2022, ASIO Director-General Mike Burgess said last month in his Annual Threat Assessment 2024: ‘Terrorism remains a threat—a real threat, a pervasive threat—even with a lower national threat level.’

Australians should be proud of our system and the security agencies that make our safety the nation’s top priority. While we are currently in a period in which a terror attack is less likely than recent years, we should not become complacent. CDOs have an important role as a last resort and, even if not used for many years, they remain relevant in both principle and practice.