‘I cannot foresee a time when you will cease to be dangerous …. I cannot envisage you being freed without the most cogent evidence of a change of mindset.’ So remarked Justice Mark Wall in London’s Woolwich Crown Court last month when handing down a life sentence, with a minimum of 28 years, to Anjem Choudary for directing a terror organisation.
Choudary was the face of militant Islam in Britain, leading numerous groups under the Al-Muhajiroun banner and pledging his allegiance to Islamic State. The ruling makes it likely that Choudary, age 57, will die behind bars in a specialised high-security separation centre in the UK.
Wall’s reasoning was essentially the same as the rationale for Australia’s continuing detention orders (CDOs), which courts can issue on application from the federal Attorney-General to keep high-risk offenders out of society. Australia would make a mistake if it abolished them. They are a valuable and well-justified counterterrorism tool, supplementing other measures.
The life sentence handed down by Wall, with the clarity that there will be no release if Choudary continues to be assessed as dangerous, is in stark contrast to the recommendation of then Australian Independent National Security Legislation Monitor (INSLM) Grant Donaldson in March 2023 that Australia’s CDOs should be abolished, as they ‘are not proportionate to the threat of terrorism and are not necessary’. Of course, threats and what is a proportionate response are not static and, since Donaldson’s review, we have seen the Hamas terror attack on Israel, the resulting regional conflict and last week’s raising of Australia’s terror level to ‘probable’ by ASIO.
Donaldson criticised CDOs for being based on perceived future risks rather than criminal guilt, arguing that those laws contributed to a harsher society without proven safety benefits. The report recommended abolishing CDOs and amending the law’s objectives to emphasise rehabilitation and reintegration. Problematically, the former INSLM’s suggestion that future risks not be guarded against seems to wholly misunderstand that counterterrorism is ideally about prevention, not only response.
Importantly, Wall’s ruling pragmatically reflects that some criminals—including terrorists and paedophiles—will always be a threat to society. It therefore contextualises Australia’s balanced approach to countering terrorism, which includes continuing detention as a last resort under Division 105a of the Criminal Code Act. The confirmation by the director-general of security that the risk of a terror attack in Australia is greater than 50 percent in the next 12 months reinforces the need to have all legislative and policy tools available.
Australia’s counterterrorism framework is about more than just being tough. It has appropriate protections. Had Choudary been sentenced in Australia, the outcome would have been significantly different. Under the Criminal Code, the mandated penalty for terrorist offences is life imprisonment. In Australia, life imprisonment generally incorporates a non-parole period, although there are slight differences between states and territories. In cases involving mandatory life sentences without parole, the legal framework permits avenues for appeals and reviews and the potential for parole following the non-parole period. Additionally, offenders can serve part of their sentence outside of prison.
If terrorist offenders are assessed as posing a significant ongoing risk to the community post-sentence, the Australian legal system can employ CDOs. These orders enable a court to extend someone’s imprisonment beyond the original sentence if he or she has been convicted of certain grave terrorist-related offences and is deemed to present an unacceptable risk of committing further serious crimes.
Under prescribed circumstances and at the request of the Australian Federal Police, the attorney-general can apply to the courts for a CDO. If granted, the order keeps the offender in prison for a specified period up to three years. Importantly, the offender’s case is reviewed at least once every 12 months.
CDO applications and annual reviews involve expert assessments, court reviews and consideration of the offender’s participation in rehabilitation programs to determine whether continued detention or release under specific conditions is necessary to manage the risk of reoffending.
The decision to apply for a CDO and the court’s decision are underpinned by a systematic assessment and evaluation of an individual’s risk factors and indicators associated with violent extremism. The tools used in that assessment aid in developing targeted interventions and strategies for prevention and rehabilitation.
While there is no perfect system, VERA-2R is Australia’s most used assessment protocol to evaluate and manage the risk of violent extremism. It uses a structured method to assess 34 indicators related to violent extremism, guiding professional judgements without providing numerical predictions. According to a report testing the reliability and validity of VERA-2R on individuals who have radicalised in Australia, it had good inter-rater reliability but low predictive validity. In simple terms, multiple assessors could reach the same conclusions about one subject using VERA-2R, but those conclusions would not reliably predict the subject’s future behaviour.
Rehabilitation and human rights are critically important components of national counterterrorism strategies. While custodial sentences reduce terror risk (likelihood) from specific offenders, deradicalisation, when successful, offers more lasting mitigation. The aim of deradicalisation is to counteract and transform extremist ideologies and behaviours by rehabilitating individuals, thereby reducing their susceptibility to terrorist influences and promoting their reintegration into society. Holistic deradicalisation programs tailored to individual needs are more effective because they address the unique personal, psychological and social factors that contribute to an individual’s extremism, fostering a more profound and lasting transformation. By personalising interventions and support, these programs enhance engagement, build trust and facilitate meaningful changes in attitudes and behaviour.
The justice system can and should make every effort to rehabilitate radicalised terrorist offenders. However, recidivism unfortunately still happens, and the consequences can be severe. In 2018, convicted terrorist Usman Khan, deemed a rehabilitation success and released temporarily from a British prison, killed two people at a London rehabilitation conference in 2019. Previously incarcerated terrorists also committed attacks in London in November 2019 and February 2020.
Rehabilitation programs are essential but imperfect, which requires governments to grapple with the possibility that not every offender will be rehabilitated—particularly within the term of his or her original sentence. CDOs offer necessary complementarity to deradicalisation professionals and law enforcement within a transparent framework of judicial oversight and control, which means they remain a last resort, having been used only twice. Other measures, such as extended supervision orders (ESOs), are again complementary but cannot replace CDOs as they are limited to non-detained individuals roaming in society.
As security threats evolve, so must governments constantly review their laws and security settings, but wholesale deletions of laws based on the threat level on any given day is not in the national interest, which is why CDOs remain an essential power in addition to surveillance, monitoring and rehabilitation.