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Australia: Reject Post-Sentence Detention

Convicts Under Terrorism Law Could Face Indefinite, Arbitrary Detention

(Sydney, October 20, 2016) – Australia’s parliament should withdraw or substantially revise a draft law that would empower judges to detain terrorism offenders after they served their sentences, Human Rights Watch said today in a submission to a joint parliamentary committee.

The draft law targets prisoners whom the authorities deem to be “high risk terrorist offenders.” It is modeled on post-sentence detention legislation used in some Australian states and territories to manage people convicted of serious sexual offenses who continue to “pose a danger to the community.”

“The Australian government already has broad and ample powers to counter terrorism,” said Elaine Pearson, Australia director at Human Rights Watch. “The proposed measures are far broader than is necessary or proportionate to protect society from genuine threats.”

The United Nations Human Rights Committee has criticized Australia’s post-sentence detention of a sexual offender in Queensland, finding the measure arbitrary and punitive, since detention was essentially imprisonment without trial and based on evidence for a crime that had already been punished.

Human Rights Watch expressed particular concern about the potential for the measure to facilitate the indefinite and arbitrary detention of prisoners who have already served their sentences – continuing detention could be ordered for periods of up to three years and then renewed successively. In addition, the proposed law would apply an overly broad definition of terrorism that includes non-violent offenses. It also would subject a person to criminal and punitive sanction using a low standard of proof – a “balance of probabilities” instead of “beyond a reasonable doubt” – and allow use of secret evidence that could violate due-process rights.

“The proposed law could be used to further punish people convicted of non-violent offenses or on the basis of secret evidence,” Pearson said. “Detaining people after they’ve served their sentence undermines the rule of law, a crucial component of combating terrorism.”

Continuing detention orders effectively add to the prison term of someone who has been convicted and served their time. This amounts to retroactively applying a harsher penalty, which is prohibited under the International Covenant on Civil and Political Rights, to which Australia is a party. UN human rights bodies have accepted additional detention only as a last resort for compelling reasons in response to grave crimes, but only for rehabilitation, not punitive, purposes.

Human Rights Watch opposes continuing detention laws because they invariably result in violations of due process rights and urges the government to withdraw the bill.

“The US and Europe have no provisions for post-sentence preventive detention of those convicted of terrorism offenses,” Pearson said. “Governments have a responsibility to protect those within their jurisdictions, but must ensure that all counterterrorism measures respect human rights.”

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