Hello and welcome back to Let’s Get Legal! Today’s article is written by Guest Author Daniel and delves into the issue of continued detention. We hope you enjoy the article and please let us know any thoughts you have or feedback to assist us in improving our future posts! You can also find a link to the full series at the bottom of the post!


Continued detention. It has been a controversial topic for politicians since the turn of the millennium, but what is it? For example, lets say Daniel is found guilty of murder and receives a 20-year prison sentence; he reaches the end of his 20 year-long sentence and is told he must stay imprisoned until the government determines otherwise. Alternatively, the government could add extra years to their sentence towards the end of their prison term. However, the government can only do this if they believe that Daniel is a threat to the community if he were to be released.

There are valid arguments for and against continued detention.


  • It protects the community from an individual who has committed a wicked crime. 
  • It acts as protecting individuals who have been subject to domestic violence in case their abuser attempts to come after them when being freed from prison.
  • It also protects the victim’s families and friends from the convicted criminal coming after them.
  • Alternatively, it protects the community as a whole from the individual going on a rampage and causing sporadic damage, injuries or death to the community and its members.
  • For example, what if an individual like Ivan Milat was released back into the community? There is a possibility he would start kidnapping hitchhikers again. The government relies on this ‘possibility’; hence, if the convicted offender does not show remorse or signs of reform, it could be argued that it is adequate to keep them in prison longer than their sentence as it’s likely they will offend again.

There are various arguments against continued detention, and I will raise a few:

  • It breaches individual human rights, holding people against their liberty after they have already served their time. You may be thinking, wouldn’t this be double jeopardy (being punished twice for the same crime)? However, in NSW, there are strict rules surrounding double jeopardy since the introduction of the Crimes (Appeal and Review) Amendment Act 2009 (NSW). Hence, unless you are acquitted of a crime and then retried on the basis of no new evidence, then, and only then, double jeopardy applies.
  • Imprisonment should only be used as a last resort in punishing offenders as it produces the worst outcomes. Individuals imprisoned for long periods are characteristically behind their time and less likely to fit into the broader community due to the sharp shift in social environments between prison and society. Hence, after an individual serves their time and the government believes they are a threat to the community, they should undergo alternative punishments such as community service to help them regain touch with society. Locking someone up and throwing away the key is not the best solution as it costs taxpayer dollars and can only worsen the offender’s mental state.

These arguments for and against continued detention are definitely strong. Personally, I feel continued detention in moderation and where it is one-hundred percent necessary is beneficial. However, I think there exists ‘undiscovered’ alternatives to continued detention that would produce more positive outcomes for all parties (the offender, victim, and community). However, until those are thought-out, I believe continued detention based on the offender meeting strict criteria is the best option available right now; however, it does breach fundamental human rights. Currently, there are no strict criteria surrounding whether someone is placed under continued detention. The criteria is relatively general; as long as an individual was convicted of a particular offence, they can be subject to continued detention.

The NSW Bar Association published a response to the Crimes (Serious Sex Offenders) Act 2006 (this act allowed offenders of certain sections of the act to be subjected to continued detention) which articulated that continued detention ‘unacceptably interferes with fundamental human rights and freedoms.’

Similarly, the United Nations Human Rights Committee, Human Rights Watch, have criticised Australia for laws that permitted continued detention as it breaches the International Covenant on Civil and Political Rights (one of the primary international sources of Human rights).

It must be noted, Australia is among a very few handful of nations with continued detention. The United States, known for its harsh criminal penalties, does not allow continued detention, nor do any European countries.

Continued detention is where individuals are kept in prison after their sentence has concluded, but how does it work? Individuals or government bodies make applications to the Attorney-General for a Continued Detention Order, commonly known as a CDO. Typically, if it concerns terrorism, the Minister of Home Affairs would make an application to the Attorney-General for a CDO directed as a particular offender. The Attorney-General submits the CDO to the Court, who will decide (based off Div 105A of the Criminal Code Act 1995 (Cth)) whether:

  1. That there is a risk of the commission of further offences.
  2. No other less restrictive measure could be imposed to protect the community.

The operation of continued detention is illustrated in this weeks’ case, Minister for Human Affairs v Benbrika [2021] HCA 4.

Minister for Human Affairs v Benbrika [2021] HCA 4

Initial Facts

  • From 2004–2005, Mr Benbrika allegedly committed two offences: having membership with a terrorist organisation; and directing activities in a terrorist organisation knowing that it was one.
  • In 2008, Mr Benbrika was convicted of both offences and sentenced to 15 years imprisonment with a 12-year non-parole period.
  • 4 September 2020, the Minister of Home Affairs made an application to the Attorney-General’s office, initiating proceedings to get a Continuing Detention Order against Mr Benbrika.
  • Mr Benbrika was to be granted parole after 12 years and due to be released on 5 November 2020; however, due to the proceedings initiated by the Minster, he was placed on an ‘interim detention order’ until the proceedings concluded. 
  • 24 December 2020, the Supreme Court of Victoria granted a Continuing Detention Order that would last three years – it must be noted that this order can continually be renewed upon successful application from the Minister to the Supreme Court of Victoria.
  • Mr Benbrika petitioned to the High Court that the Supreme Court of Victoria did not have the judicial power to grant a continuing detection order. He argued that state courts only have powers to issue punitive orders, and a continuing detention order is a non-punitive order which only the executive branch or federal courts could execute.

The Case

The Court had to consider a variety of questions:

  • Whether the judicial powers of state courts are restricted to only ruling on past events only?
  • Whether a Continuing Detention Order under Division 105A of the Criminal Code (Cth) is punitive or non-punitive (intended to be a punishment or not).
  • Whether the Federal Parliament can delegate a federal courts’ power to a state court.

Whether the judicial powers of courts are restricted to only ruling on past events only?

Mr Benbrika argued that it was outside the Court’s judicial powers to make a Continuing Detention Order. He argued that the role of the judicial branch is to determine the actual or potential controversies of past events and make out the existing rights and obligations of each party. Arguing that by issuing a CDO, the court would be considering future rights and obligations, which are outside of their judicial power.

The Court quickly struck down this argument, Fardon v Attorney-General for the State of Queensland [2004] HCA 46 had previously held that the court is not strictly required to ‘determine an actual or potential controversy as to existing rights or obligations’, otherwise the court would be unable to issue bankruptcy orders, or orders permitting the dissolution of a marriage.

Whether a Continuing Detention Order under Division 105A of the Criminal Code (Cth) is punitive or non-punitive (intended to be a punishment or not)

Mr Benbrika raised the ‘Lim principle’, where it was held in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [2016] that the executive branch can detain individuals if it is ‘reasonably capable as being seen as necessary to achieve a non-punitive purpose’.

The Court held that the premise of a continued detention order is non-punitive as it aims to protect the ‘risk the offender poses of future harm to the community upon release’. It does ‘not punish the offender for the offence they were sentenced for’.

Whether the Federal Parliament can delegate a Federal Courts’ power to a State Court?

In pondering this, the court referred to Thomas v Mowbray (2007), which held ‘power conferred on a court to make an order under [the Criminal Code] is within the judicial power of the Commonwealth’.

Hence, yes, the Federal Parliament can delegate a State Court.

Additionally, Mr Benbrika used the fact that only the executive branch can detain individuals for non-punitive purposes (as well as federal courts); however, state courts cannot impose non-punitive punishments unless the Federal parliament delegates them the power to do so.

Although the Criminal Code 1995 (Cth) s 105A.7 indicates:

‘105A.7 Making a continuing detention order

(1) A Supreme Court of a State or Territory may make a written order under this section if…’

In regard to this, Edelman J applied a three-step test:

  1. ‘Is the power in s 105A.7… exclusively judicial?’
  2. ‘Has the power been conferred… upon the judiciary …in the form of a judicial power?’
  3. ‘Is the power to be exercised only judicially?’

By applying these tests, Edelman J found that state courts do have the power to delegate federal court powers to a state court.

Concluding Thoughts

In viewing this case as a whole, I highly recommend you read the full judgment as the Court’s breakdown of Mr Benbrika’s arguments was very thorough and well-structured.

I must draw to your attention that the Court’s role, in this case, was to determine whether the State court had the power to impose a continued detention order on Mr BenBrika. The Court was not concerned with the constitutionality or ethics surrounding continued detention. Courts only has the power to rule based on the facts and circumstances brought before them; they cannot go out on a limb and create laws (like parliamentarians do). So, if you have any anger against continued detention, the Federal parliament members are to blame.

In saying that, Gordon J made remarks in regard to Division 105A of the Criminal Code Act. For a Court to issue a continued detention order, as mentioned in the introduction, the Court must be ‘satisfied to a high degree of probability that the offender poses an unacceptable risk of committing an offence if the offender is released into the community’. Gordon J cleverly pointed out the issue with this section is it ‘‘does not identify the amount of risk’ that needs to be shown. As it only provides broad criteria, Gordon committed that the statute itself is not adequately drafted.

Personally, I concur with Gordon J.

Nonetheless, what are your thoughts about continued detention? Should we be petitioning politicians to repeal it due to its unethical nature? Or is it an essential mechanism to protect the community? Let me know in the comments below.

Previous Article: https://thelevinelowdown.com/2021/03/28/lets-get-legal-border-battles/

Let’s Get Legal Series: https://thelevinelowdown.com/lets-get-legal-2/


The Case: http://eresources.hcourt.gov.au/showCase/2021/HCA/4

One thought on “Let’s Get Legal: In Prison, Forever?

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