It's been said of Council of Australian Government meetings that only the time the states and territories agree on anything is when there is the offer of more Commonwealth money on the table. But terrorism can do the trick too, as Friday's meeting showed. The assembled leaders agreed to back proposed new federal laws designed to keep convicted terrorists who've completed their jail terms locked up if they're regarded as an ongoing danger to the community.
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For Dan Tehan, the chairman of Federal Parliament's intelligence and security committee, the resolution is something of a triumph. Mr Tehan has been a tireless advocate for tougher anti-terrorism laws. He led the charge for reforms earlier this year to allow police to apply for control orders on teenagers as young as 14, and this week went on a media blitz to talk up the virtues of detaining recalcitrant convicted terrorists indefinitely. Indeed, he equated them with serial paedophiles, suggesting that if terrorists finished their sentences "unreformed", then they too should be treated as an ongoing community danger and threat.
Indeterminate detention is not unknown in Australia, but it has largely been confined to individuals who've been given "governor's pleasure" verdicts in the courts. Such individuals have been found not guilty of serious offences by reason of mental illness but remain detained at the governor's pleasure on the grounds that their moral judgment is gravely flawed, that the community needs to be protected, or that the person is not actually innocent of the crime. If the criminally insane are now dealt with in more sophisticated, humane ways, the relevance of indefinite detention has remained – and evolved in ways that discomfort rather than reassure.
In a fit of moral panic in the early 2000s, the Queensland parliament passed a law that detained a convicted sex offender beyond the term of his original sentence for an indefinite period. In October 2004, the High Court (in a 6-1 majority judgment) upheld the validity of the law, arguing the act did not compromise the integrity of the courts or breach the constitution. That opened the way for the states to legislate to detain other individuals considered to pose a danger to the community.
The passage of uniform laws in each state and territory allowing for post-sentence detention of "unreformed" terrorists would seem, therefore, to be a formality. Whether this provides "the practical and sensible answer" to the danger posed by recidivist terrorists, as Mr Tehan claims, is open to doubt, however. The hypothesis that it might prevent a future attack, while plausible and attractive, can never be tested. And a convicted terrorist resolved to committing another atrocity on leaving prison would hardly manifest recidivist tendencies on the inside if he knew this might trigger further jail time.
Who would judge whether the convicted terrorist approaching the end of his sentence was a reformed character or not? The gravity of indefinite confinement would suggest that the courts adjudicate on such matters. There is no evidence, thus far at least, to suggest this will be the case. Will the executive do the ruling, then? And what if any avenues of appeal will exist? The lack of clarity, and is the potential for executives to stretch the meaning of the term "terrorist" to include some other criminal regarded as either mad, bad or dangerous to know is concerning.
Mr Tehan's enthusiasm for indefinite detention appears to stem in part from his belief that hardcore Australian terrorists are spending their time in jail recruiting and radicalising other inmates. Australian jails have a spotty record in reforming and rehabilitating inmates; nonetheless it should not be beyond the wit of those running them to deal astutely and sensibly with prisoners intent on recruiting others to the cause of Islamic-inspired terrorism. Resorting to the sledgehammer of indefinite jail time would run the risk of exacerbating the grievances that many in the Muslim community harbor – and possibly furnish Islamic State with another recruitment tool.
The dissenting High Court Justice in the 6-1 majority decision of October 2004 was, not surprisingly, Michael Kirby. His judgement, that courts could impose punishment only crimes committed in the past, remains apposite. "It's not available," he wrote, "for crimes that are feared, anticipated or predicated to occur in the future on evidence that is notoriously unreliable and otherwise would be inadmissible, and by people who do not have the gift of prophesy".
