Terrorism (High Risk Offenders) Act 2017

The Act’s reach is deliberately broad yet precisely bounded by the concept of an “eligible offender”. Section 7 defines this as a person 18 years or older who is serving, or is continuing to be supervised or detained under the Act after serving, a sentence of imprisonment for a “NSW indictable offence” (s 6A, which includes aggregate and cumulative sentences containing at least one indictable offence). The definition was widened by the 2024 and 2025 amendments to capture offenders who remain under any form of order made under this Act or the CHROA.

Three sub-categories determine the precise pathway:

• Convicted NSW terrorist offender (s 8): anyone serving (or continuing under an order after serving) a sentence for an offence against s 310J of the Crimes Act 1900 (acts in preparation for, or planning, a terrorist act), or who has previously served such a sentence and is now serving another NSW indictable sentence. The definition expressly extends to aggregate and cumulative sentences (s 8(2)).

• Convicted NSW underlying terrorism offender (s 9): an offender whose index NSW indictable offence is a “serious offence” (firearms, weapons, homicide, grievous bodily harm, serious property damage, endangerment, public-health risks, interference with critical infrastructure, or inchoate versions) and who committed it either with the intention of advancing a political, religious or ideological cause by coercion or intimidation, or knowing or being reckless that it would assist another to commit a terrorism offence. The provision has extraterritorial effect (s 9(4)).

• Convicted NSW terrorism activity offender (s 10): an offender serving a NSW indictable sentence who has been subject to a control order, has been a member of a terrorist organisation (as defined in the Commonwealth Criminal Code), or has advocated support for terrorist acts or violent extremism or maintained associations with those who do. Subsection (1A) gives non-exhaustive examples including pledges of loyalty, display of symbols and social-media contact. Conviction for the conduct is not required (s 10(2)).

The Supreme Court may make a declaratory finding under s 12 that a person falls into one of these categories. Such a declaration relieves the State of the need to re-prove eligibility or category in subsequent order applications (s 12(8)) and lasts 15 months (or until final determination of an order application).

Beyond offenders, the Act affects a wide range of state agencies. Corrective Services NSW, the NSW Police Force and prescribed terrorism intelligence authorities must prepare reports (ss 25(3)(d)–(e), 39(3)(d)–(e)) and supply offender information on request (s 58). The HRO Assessment Committee (established under the CHROA) reviews risk assessments, coordinates agencies and develops best-practice guidelines (s 63). Justice Health, the Ministry of Health and other “relevant agencies” (s 62) are subject to a statutory duty to cooperate, including information sharing (s 64). Victims recorded on the Victims Register receive notice and may provide statements (s 51). The Attorney General acts on behalf of the State (s 66) and may enter terrorism-information exchange agreements with other Australian jurisdictions (s 67).

Legal representatives, independent third parties appointed under s 59B, and expert witnesses (psychiatrists, psychologists and “relevant experts” prescribed by regulation) all play formal roles. The Supreme Court itself is given expanded procedural powers, including closed hearings and confidentiality orders.

Offender duties are primarily contained in the conditions attached to ESOs and ISOs. Section 29(1A) mandates a core set of conditions unless the Court orders otherwise: submission to supervision and all reasonable directions (including schedule-of-movements requirements), wearing and not tampering with electronic monitoring equipment, living at an approved address, not leaving NSW without Commissioner approval, submission to searches of person, residence and devices, compliance with accommodation rules, abstinence from prohibited drugs, drug and alcohol testing, prohibition on firearms, prohibited weapons, explosives and detonators, availability for interviews, mandatory psychological or psychiatric treatment, prior approval for employment or education, restrictions on communication devices, notification of address or employment changes, non-association with specified persons, and non-frequenting of specified places. Additional discretionary conditions in s 29(1) can address computer access, financial dealings, name changes and participation in intervention programs. Breach of any condition is an offence punishable by 500 penalty units or five years’ imprisonment or both (s 30).

State duties include timely service of applications (ss 24(1), 38(1)), comprehensive pre-trial disclosure (subject to terrorism-intelligence carve-outs) (ss 24(2)–(3), 38(2)–(3)), and provision of reports at 12-monthly intervals to inform variation or revocation decisions (ss 31(4)–(5), 48(4)–(5)). The State must notify the Legal Aid Commission before filing an emergency-detention application and supply the application and affidavit if requested (s 45(2)). Victim-notification obligations appear in s 51.

Rights of the offender are procedural rather than substantive. The proceedings are civil (s 50), so the rules of evidence apply except where the Act expressly overrides (e.g. admissibility of material provided under Part 5 despite any contrary law – s 61). The offender is entitled to appear, call evidence, cross-examine and make submissions (s 54). Costs cannot be awarded against the offender (s 55). Where terrorism intelligence is involved, the offender is entitled to an independent third-party representative who receives the material and makes best-interests submissions (s 59B(3)). The offender may apply to vary or revoke any order (ss 31, 48) and appeal to the Court of Appeal (s 53). Public-interest immunity is not abrogated (s 17A), giving the State a tactical choice between disclosure and withdrawal (s 60A).

Victims have the right to notice, to make oral or written statements, and to have those statements considered while remaining confidential from the offender unless consent is given (s 51).

The principal offence is breach of an ESO or ISO, carrying a maximum of 500 penalty units or five years’ imprisonment or both (s 30). Breaches can also trigger an application for a CDO even if the existing supervision order has not formally expired (s 34(2)–(3)).

Contravention of a Court order made under the terrorism-intelligence provisions (s 59F) attracts the same corporate/individual 100-penalty-unit or two-year maximum, escalating to seven years’ imprisonment where the person intends to endanger health or safety or prejudice an investigation, or is reckless as to that outcome (s 59F(3)).

Non-compliance with a statutory demand for offender information under s 58 carries 100 penalty units (corporations) or 100 penalty units and/or two years’ imprisonment (individuals). Offences under s 30 and s 59F(2)–(3) are dealt with on indictment unless an election is made for summary disposal (s 68 and Criminal Procedure Act 1986 Sch 1 Table 2).

Enforcement officers (corrective services or police officers – s 4(1)) are authorised to enter approved premises, conduct searches, seize devices, demand schedules of movements and give reasonable directions. Warrants of committal issue automatically on making a detention order (s 49). Electronic monitoring is supported by statutory authority to enter premises and access data (s 29(1)(a)–(c)).

Revocation or variation applications can be brought by the State or the offender (ss 31, 48). The Court may revoke if circumstances have changed sufficiently to render the order unnecessary (ss 31(3), 48(3)). Annual reports from the Commissioner of Corrective Services and Commissioner of Police must address continuing necessity (ss 31(4)–(5), 48(4)–(5)).

The Act is expressly designed to sit beside, and not limit, the CHROA (s 16(1)). Supervision or detention under a CHROA order is treated as equivalent for the purposes of eligibility, classification and risk assessment (s 16(2)–(4)). This permits “top-up” or parallel applications and allows the Court to rely on CHROA psychiatric reports.

It cross-references the Commonwealth Criminal Code for the definitions of “terrorist act”, “serious terrorism offence”, “control order” and “terrorist organisation”. Section 9(3)(b)(iii) further picks up “terrorism offence” within the meaning of the Crimes Act 1914 (Cth). The definition of terrorism intelligence (s 4(1)) expressly contemplates ASIO and other Commonwealth agencies.

Within NSW, the Act interacts with the Crimes (Administration of Sentences) Act 1999 (definition of correctional centre, corrective services officer, Commissioner), the Crimes (Sentencing Procedure) Act 1999 (aggregate sentences), the Health Services Act 1997 (Justice Health), the Firearms Act 1996 and Weapons Prohibition Act 1998 (serious offences for underlying-terrorism classification), and the Child Protection (Offenders Registration) Act 2000 (conditions that may be imposed under s 29(1)(q)). The Interpretation Act 1987 applies except where excluded (note to s 4).

The Bail Act 2013 is disapplied to defendants in proceedings under the Act (except offence proceedings) (s 17). Public-interest immunity is preserved (s 17A). The Supreme Court Act 1970 supplies rule-making power (s 18) and governs appeals (s 53(2) applying s 75A).

Information-sharing provisions in Part 5 and Part 6 override confidentiality obligations in other legislation to the extent necessary for risk assessment and management (ss 58, 64–65, 67). However, s 71 strictly limits further disclosure of expert reports supplied for ESO/CDO applications. Section 71A authorises use (with provider consent) of Part 5 material in parole proceedings before the State Parole Authority or Children’s Court.

The Act contains a reading-down clause (s 15) to preserve validity if any application exceeds legislative power, and applies to pre-commencement offences and sentences (ss 13–14).

The Act has been substantively amended on four occasions since 2017, each responding to operational experience, court decisions and evolving national security policy.

The Justice Legislation Amendment Act (No 2) 2018 (No 29 of 2018) introduced the first comprehensive terrorism-intelligence regime, replacing the rudimentary s 60 with the current Division 5.3. It also inserted s 12A (suspended orders still count as supervision for eligibility), clarified that public-interest immunity is not abrogated (s 17A), and expanded breach penalties. These changes were driven by the practical difficulty of using sensitive intelligence in open civil proceedings while satisfying procedural fairness.

The Community Protection Legislation Amendment Act 2018 (No 94 of 2018) further refined the intelligence provisions, added the independent-third-party mechanism (s 59B), inserted s 71A on parole use, and made technical adjustments to ss 10, 16, 23, 24, 25, 29, 38, 39, 53, 57 and 68. The amendments responded to early litigation in which intelligence material risked being excluded or required full disclosure.

The 2024 No 6 amendments tightened eligibility language and updated cross-references following federal terrorism-law changes.

The Terrorism (High Risk Offenders) Amendment Act 2025 (No 15 of 2025) made the most recent alterations. It inserted s 6A (clarifying that aggregate and cumulative sentences containing any NSW indictable offence qualify), amended the definitions in ss 7–10 to capture offenders who remain under any form of order after serving the index sentence, and made consequential changes to ss 4, 20, 23, 33 and 34. The explanatory materials indicate these changes were intended to close loopholes exposed when offenders reached the technical end of a sentence while still subject to a suspended or concurrent order, ensuring the preventive regime could continue without artificial interruption.

Collectively, the amendments have shifted the Act from a relatively straightforward post-sentence supervision statute to a sophisticated, intelligence-centric preventive detention framework aligned with national counter-terrorism policy.

Although the Act post-dates the High Court’s decision in Fardon v Attorney-General (Qld) (2004) 223 CLR 575 and the NSW analogue in State of New South Wales v Thomas (No 2) [2018] NSWSC 2045, several constitutional and procedural issues have arisen.

First, the use of closed material and independent third parties has been challenged on procedural-fairness grounds. In Attorney General for New South Wales v XX (a pseudonym) [2021] NSWSC 501 the Supreme Court upheld the s 59C regime, reasoning that the combination of summaries, statements of facts, independent-third-party advocacy and the civil standard of proof satisfied the requirements of Chapter III of the Commonwealth Constitution. The Court of Appeal refused leave to appeal, citing the protective rather than punitive character of the jurisdiction (cf Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51).

Second, the breadth of the “terrorism activity offender” category under s 10 has attracted criticism for capturing speech and association that may fall short of criminal conduct. In one unreported preliminary hearing, counsel argued that mere social-media “likes” or attendance at certain rallies could not constitutionally ground indefinite supervision. The Court rejected the submission, pointing to the statutory safeguards in s 11 (sentencing views, expert evidence, criminal history, pattern of behaviour) and the high-probability threshold in s 20(d).

Third, the interaction with parole has produced practical controversy. Section 71A permits use of Act-generated material in parole hearings only with the provider’s consent. Corrective Services and Police have occasionally withheld consent, leading to parallel but inconsistent risk assessments. The 2025 amendments were partly intended to reduce such friction by clarifying that an offender on parole remains an “eligible offender”.

No challenge has yet succeeded in striking down the legislation as punitive or contrary to the Kable principle. Courts have consistently characterised the orders as protective rather than additional punishment, citing the civil standard, the paramount consideration of community safety, and the availability of rehabilitation conditions (see, analogously, Minister for Home Affairs v Benbrika (2021) 272 CLR 68 on Commonwealth control orders).

Most practitioners miss the interaction between suspended orders and eligibility. Section 12A provides that a person subject to a suspended ESO or CDO is still “supervised or detained under this Act” for the purposes of the definitions in ss 7–10. This prevents an offender from “aging out” of the regime simply by breaching and having the order formally suspended.

The terrorism-intelligence regime contains a trap in s 59D(3): the Court may refuse to allow withdrawal of material even if it does not qualify as terrorism intelligence or the proposed access level is inadequate, if withdrawal would be “manifestly unfair” to the offender. This can force the State to choose between full disclosure (risking sources) or abandoning the material entirely.

Section 34(2) is frequently overlooked. A CDO cannot be made against a person on an active (unsuspended) ESO unless there has been a s 30 conviction or “altered circumstances”. The Court has interpreted “altered circumstances” narrowly; a mere change in risk assessment without new facts has been held insufficient in at least two first-instance decisions.

The mandatory conditions in s 29(1A) cannot be dispensed with except by express Court order. Many consent orders presented to the Court inadvertently omit the statutory wording, rendering them technically defective and exposing the offender to strict-liability breach arguments.

Finally, the annual reporting obligation under ss 31(4) and 48(4) is not merely bureaucratic. A Commissioner’s report that fails to address continuing necessity can be used by the offender on a revocation application to argue changed circumstances, even if the report ultimately recommends continuation. Defence counsel routinely subpoena these reports.

For correctional and police agencies: Establish internal protocols to identify potentially eligible offenders at least 18 months before sentence expiry. Feed all relevant material (including custodial behaviour, radicalisation indicators, visitor logs and intelligence) to the HRO Assessment Committee (s 63). Ensure that any terrorism intelligence is flagged early so that a s 59A application can be prepared. Comply strictly with the 12-month pre-expiry window for applications (ss 23(2), 37(2)). Prepare detailed manageability reports addressing each of the s 25(3)/s 39(3) factors.

For the Attorney General’s Department: Maintain a central register of declared offenders under s 12. Before filing, serve an index of material (s 24(2A)) and ensure all terrorism-intelligence applications are supported by affidavits that particularise the four limbs of the s 4(1) definition. Where an independent third party is to be appointed, budget for their costs (s 59B(4)). Negotiate co-operative protocols under s 65 and terrorism-information exchange agreements under s 67 to streamline inter-jurisdictional flows.

For legal representatives of offenders: At the preliminary hearing stage, focus on whether the supporting documentation could, if proved, justify an order. Challenge the classification under ss 8–10 by reference to the s 11 factors, especially sentencing remarks and absence of pattern. Where closed material is involved, instruct the independent third party to press for the least-restrictive access level (full document, redacted document, summary or statement of facts). On final hearing, emphasise protective factors: participation in deradicalisation programs, genuine remorse, family support, and manageability proposals that avoid the need for detention. File variation or revocation applications as soon as any material change (new psychiatric opinion, completion of treatment, passage of time without incident) can be evidenced. Monitor the 28-day appeal window strictly (s 53(3)).

For experts: Reports must address the statutory checklist. A bare “high risk” conclusion is insufficient; the Court requires explicit discussion of the likelihood of serious terrorism offending, the offender’s willingness to undertake treatment, and the practicality of community management. Participation levels are themselves a mandatory consideration (ss 25(3)(a)–(b), 39(3)(a)–(b)).

For the Court: Ensure that any closed hearing complies with s 59C and that reasons for access decisions are given in open court to the greatest extent possible without compromising the intelligence. When imposing conditions, expressly state whether the s 29(1A) mandatory conditions are varied and, if so, why. Record on the face of any ESO or CDO the precise expiry calculus, including the effect of any suspension periods (ss 26(6), 40(1)).

Compliance is not merely procedural; it requires continuous risk reassessment, meticulous documentation, and a clear understanding that the legislation prioritises community safety while demanding rigorous proof to a high degree of probability on the balance of probabilities.