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Policy Bulletin 2022 / 3 (High Risk Commonwealth Terrorism matters)

29 Mar 2022

The Legal Aid NSW Board has approved an amendment to the Commonwealth Terrorism policies to include provision for the Extended Supervision Order regime introduced by the Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Act 2020.


A new scheme for Extended Supervision Orders (ESOs) for Commonwealth High Risk Terrorist Offenders commenced on 8 December 2021. The Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Act 2020 amended Division 105A in Part 5.3 of the Criminal Code to enable a state Supreme Court to make, review and vary ESOs, complementing the existing Commonwealth Continuing Detention Order (CDO) scheme in Division 105A.[1] The amended Division 105A deals with ‘post-sentence orders’ (PSOs), which now includes both ESOs and CDOs.

Eligibility for an ESO is based on being convicted of, and serving a custodial sentence for, the same Commonwealth terrorism offences that would make an offender eligible for a CDO.

ESOs can be made for up to 3 years at a time. There is no limit on the number of ESOs that can be made. Under an ESO, a court may impose any conditions (prohibitions, restrictions or obligations) that it is satisfied are reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the community from the unacceptable risk of the offender committing a serious terrorism offence.

What has changed?

Legal aid is available to applicants who are responding to applications by the Australian Federal Policy Minister for post sentence orders subject to the Means Test and Availability of Funds Test. Legal aid is available for applications to review, vary, revoke or appeal subject to the Means Test, the Merit Test and the Availability of Funds Test.

See changes at Policy Online, Criminal Law Policy at 4.18.6 and 4.18.7.

Commencement date

The change applies to applications determined on or after 14 March 2022.

Contact for further information

Please contact the Client Eligibility Unit for any questions about the change at aideen.mcgarrigle@legalaid.nsw.gov.au or 9219 5701.

[1] Prior to this legislative amendment, supervision of eligible offenders in the community, known as Control Orders, was dealt with in accordance with Division 104 of the Code in the Federal Court.