Post-sentence detention of terrorists: From Sins of the Past to predicting future risk in three new Australian regimes

Prof. Mark Nolan1

1ANU Law School, ANU College Of Law, The Australian National University, Canberra, Australia

In this paper, three new Australian regimes of post-sentence detention of those assessed to be at risk of committing terrorism offences will be critically examined in terms of the legal and legal psychological controversies they pose.  The first regime is the new federal regime of continuing detention orders in s 105A of the Criminal Code (Cth), modelled on existing state and territory schemes for post-sentence detention of serious sex offenders and violent offenders.  This federal scheme allows the Attorney-General (Cth) to apply to court for continuing detention orders against prisoners serving sentences for terrorism offences.  Even more controversially, two newer State-based regimes in New South Wales (see the Terrorism (High Risk Offenders) Act 2017 (NSW)) and South Australia (see amendments to the Criminal Law (High Risk Offenders) Act 2015 (SA)) allow continuing detention orders to be made against offenders whose index offence was not terrorism, though, prior to release, are suspected of being radicalised and willing to engage in terrorism. These regimes will be discussed in terms of how they challenge criminal justice principles, human rights, and, the expert assessment of offending risk; be that a risk of recidivism, and/or a risk of terrorism offending for the first time.


Professor Mark Nolan teaches and researches at the ANU Law School, ANU College of Law, The Australian National University in Canberra. He is trained in law and psychology as well as Asian studies and teaches and researches criminal law, legal psychology, comparative criminal law and procedure, and military discipline law.  Areas of interest include federal criminal law (eg. counter-terrorism law, human trafficking), empirical social psychological jury research, research on perceptions of laws and legal processes, human rights, social justice research, intergroup relations, social identity and self-categorization theories, citizenship and citizenship law. Since 2002, Mark has taught a Law and Psychology course to law students at ANU, and has co-authored the text Legal Psychology in Australia (Thomson Reuters Lawbook Co., 2015) with Professor Jane Goodman-Delahunty.  Mark is the Secretary of ANZAPPL Inc serving on the binational committee and was the inaugural President of ANZAPPL ACT.

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