Sentencing and Post-Sentence Decisions under Australia’s Counter-Terrorism Laws: Risk-Averse not Risk-Based

Under Australia’s counter-terrorism laws, sentenced offenders face the possibility of continuing detention for rolling three-year periods after serving a term of imprisonment. At both stages of decision-making – sentencing and post-sentence – Australian courts favour punishment, deterrence and community protection over the need to rehabilitate offenders. The need to pre-empt terrorist risks is clear, but these processes lack a sufficient evidence base about recidivism and risk assessment. In this article, I compare, contrast and critically analyse decision-making processes followed by Australian courts when making decisions about imprisonment in terrorism cases. These decisions are made at two different stages: (1) initial sentencing under criminal offences for terrorism, and (2) post-sentence under a Continuing Detention Order (CDO) scheme. Whereas initial sentencing decisions are made under criminal law and impose punishment on offenders, CDOs fall under civil law and are considered non-punitive, even though they extend the initial punishment. Neither stage relies on a strong evidence base to predict future behaviour, and yet assumptions about future risk are given sufficient weight to justify ongoing deprivations of liberty and undermine core principles of criminal justice.