Post-sentence continued detention of high-risk terrorist offenders in Australia Charisse Smith and Mark Nolan * In December 2015, the Council of Australian Governments agreed to imple- ment a nationally-consistent post-sentence preventative detention regime for convicted terrorists. This scheme will allow for the continued imprisonment of high-risk terrorist offenders in a similar way as the existing sex offender and violent offender continuing detention order regimes. This article will assess whether the introduction of a continuing detention order regime for terrorism is possible and defensible, based on the requirements and justifications provided for the sex offender and violent offender regimes. Specifically, it will be considered whether psychometric risk assessment for terrorist offenders can validly estimate which offenders are at a high-risk of reoffending and pose a threat to the community and whether the introduction of an effective rehabilita- tion program for terrorism is possible. INTRODUCTION Since the terrorist attack in the United States on 11 September 2001, there have been extensive changes to Australia’s national counterterrorism laws. In 2002, the Security Legislation Amendment (Terrorism) Act 2002 (Cth) amended the Criminal Code (Cth) to define a terrorist act as “advancing a political, religious or ideological cause and coercing or influencing by intimidation an Australian or foreign government or intimidating the public or a section of the public”. 1 The pre-emption of terrorist acts also became the focus of the legislation, where a person can be charged with preparatory, group-based and financing offences whether or not a terrorist act eventuates. 2 The purpose of the offences is to prevent the emergence of circumstances which may render more likely the carrying out of a serious terrorist act … the legislation is designed to bite early, long before the preparatory acts mature into circumstances of deadly or dangerous consequence for the community. 3 As of February 2015, 45 persons, all of them men and almost all identifying as Muslim, have been charged under Australia’s terrorism laws for preparatory conduct and 26 have been convicted. 4 A number of the offenders have already been released, and others are nearing the completion of their sentences. 5 The consequences of releasing a terrorist offender who remains radicalised (defined as a commitment to an extremist, political or religious ideology) 6 is a real threat to counterterrorism efforts. For example, in January 2015, released French terrorist offender Cherif Kouachi perpetrated * Charisse Smith: LLB(Hons), BSc(Psychology). Mark Nolan: BSc(Hons), LLB, MAsPacSt, PhD, SFHEA, Associate Professor, ANU College of Law. This article is based on an Honours thesis by Charisse Smith, submitted to the ANU College of Law in Semester 2, 2015. The authors thank Professor Clive Williams, Vesna Shields and Stephen Smith for their comments and feedback. 1 Criminal Code (Cth) s 100.1. 2 Criminal Code (Cth) Divs 101-103. 3 R v Elomar (2010) 264 ALR 759; [2010] NSWSC 10, [79]. 4 Andrew Lynch, Nicola McGarrity and George Williams, Inside Australia’s Anti-Terrorism Laws and Trials (UNSW Press, 2015) 96. 5 Such as Belal Khazaal in 2016 and Abdul Benbrika in 2020: Lynch, McGarrity and Williams, n 4, 97-98. 6 John Horgan, Walking Away From Terrorism: Accounts of Disengagement from Radical and Extremist Movements (Routledge, 2009) 152. (2016) 40 Crim LJ 163 163