Restricting bail and parole for those with terror links is no cure-all

Earlier this month, the Council of Australian Governments (COAG) agreed that the states and territories should enact new anti-terrorism laws. This came in the wake of a siege in the Melbourne suburb of Brighton, during which Yacqub Khayre killed a man and took a woman hostage.

At the time of the siege, Khayre was on parole for violent – but not terrorist – crimes. Shortly before Khayre was killed by police at the scene of the siege, he is alleged to have called the Seven Network and said:

This is for IS. This is for al-Qaeda.

Islamic State (IS) subsequently claimed the attack.

Khayre’s background is important in understanding why this attack produced a counter-terrorism response. In 2009, he was arrested and charged with terrorism offences in relation to the Holsworthy Barracks plot. Even though he was acquitted at trial, Khayre was tainted by the perceived association with terrorism.

COAG’s proposed new laws will capture this type of person. As Prime Minister Malcom Turnbull put it:

Violent criminals with terrorist links should not be walking the streets. They belong in jail.

The COAG proposals

Under the COAG proposals, states and territories will be required to:

… strengthen their laws to ensure that there will be a presumption that neither bail nor parole will be granted to those who have demonstrated support for or have links to terrorist activity.

Decisions on parole for those with a terrorism link will be taken out of the hands of the parole authorities. Instead, they will be the responsibility of state attorneys-general.

There are no clear details yet on how the legislation will define “links to” terrorist activity, or what behaviours will be captured by “demonstrating support for terrorist activity”. However, it seems likely that having associated with known or convicted terrorists in the past, or having been investigated for terrorism offences, will be covered.

So, had these measures been in existence when Khayre came up for parole, he would not have been released early from his sentence for violent crimes, and could not have carried out his attack.

Restricting bail and parole

Restrictions on bail and parole are not unusual in the terrorism context.

In the UK, bail is automatically denied to those arrested without warrant on suspicion of being a terrorist.

The blanket ban on bail is relatively uncontroversial. But both the two former independent reviewers of terrorism legislation, and the UK’s Joint Committee on Human Rights, have called for changes to allow terrorist suspects to apply for bail. The government has consistently rejected these calls on the grounds that denying bail to terrorist suspects is operationally useful, and has not been found to breach the right to liberty and security guaranteed in the European Convention on Human Rights.

Under a new law enacted in the UK in 2015, terrorist prisoners are no longer automatically entitled to receive parole once they have served 50% of their prison sentence.

Those convicted of terrorism offences are now required to undergo a risk assessment prior to parole being granted. They will only be released early on parole if the Parole Board decides they no longer represent a risk to the public.

However, the new laws COAG has proposed for Australia go far beyond those in the UK. They will restrict parole and bail to those merely associated in some way with terrorism, even when they have not be arrested for – or convicted of – a specific terrorism offence.

This is a significant expansion of Australia’s already extensive anti-terrorism regime.

Existing post-sentence restrictions

Two regimes already exist to prevent convicted terrorists from being released unsupervised back into the Australian community.

The control order regime, which was introduced in 2005, was amended in 2014 to enable a control order to be issued on the ground that a person has been convicted of a terrorism offence.

Once a control order has been issued, controlees are subject to a range of obligations, prohibitions and restrictions. This includes restrictions on movement and communications. Controlees can also be required to wear a tracking device and report to the police at regular intervals.

Second, under a newly commenced regime, a terrorist offender can be detained in prison under a continuing detention order at the end of their sentence if the court is “satisfied to a high degree of probability, on the basis of admissible evidence, that the offender poses an unacceptable risk of committing a serious [terrorism] offence if the offender is released into the community”, and:

… there is no other less restrictive measure that would be effective in preventing the unacceptable risk.

A continuing detention order can last for up to three years, and may be renewed at the end of its duration. It is a possibility that a convicted terrorist may never be released from prison.

Delaying the inevitable?

Neither of these regimes would have been applicable to Khayre, as he was not on parole for a terrorism offence. However, the police also had no specific intelligence that he posed a terrorist threat.

It is possible that his attack was spontaneous, rather than planned. It is also possible therefore, that Khayre would always have carried out this tragic act.

So, even if COAG’s proposed new laws had been in effect and Khayre had been refused parole, he would eventually have been released from prison after having served his full sentence.

Turnbull has said the new laws will be:

… a vital element in keeping these people who are a threat to our safety, and the safety of our families, off the streets.

But they will only do this during the relatively short period of time after someone would have been released, either on bail or parole. Once they have served their full sentence, they will be released into the community without any supervision.

It is important, therefore, that the government pays as much attention to the provision of rehabilitation and deradicalisation programs for those with potential terrorist links inside prison as it does on measures that appear tough on terrorism.

Restricting bail and parole to people like Khayre who have links to terrorist activity, but who have not been convicted of terrorist offences, only delays their inevitable release. If they pose a threat during the parole period, then without rehabilitation and deradicalisation, they will still pose a threat when released at the end of their sentence.