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Policy Bulletin 5 / 18 (Criminal Law Policy – High Risk Terrorist Offenders)

2 Jul 2018

The Legal Aid NSW Board has approved the introduction of new criminal law eligibility policy in response to legislation concerning High Risk Terrorist Offenders.


There have been two new legislative regimes introduced by the State and Commonwealth Governments respectively, to deal with high risk terrorist offenders.

1. High Risk Terrorist Offenders (NSW). The Terrorism (High Risk Offenders) Act 2017 (NSW) commenced on 6 December 2017. The new regime provides for Extended Supervision Orders, Continuing Detention Orders and Emergency Detention Orders that can be made by the Supreme Court for offenders currently in prison (or under an order).

2. High Risk Terrorist Offenders Cth. A new Division 105A was inserted into the Criminal Code 1995 (Cth) and commenced on 7 June 2017. The regime provides for Continuing Detention Orders for offenders currently in prison (or under an order) for terrorism offences.

Applications under these regimes seek to detain an inmate beyond the court-ordered sentence, or impose extended supervision that impacts upon the release conditions of inmates. This involves conditions that are onerous and extensive and significantly impact on the personal liberties of the individual. These applications also have a disproportionate impact on Aboriginal offenders and offenders with either mental health issues or cognitive impairments.

What has changed?

Legal aid is available to respond to an application under the Terrorism (High Risk Offenders) Act 2017, including for an emergency detention order, and to respond to an application under s105A of the Criminal Code 1995, subject to the Means and Availability of Funds Tests.

Legal aid is also available for variations, revocations and for an appeal of an order, subject to the means, merit and availability of funds tests. All applicants will also be required to satisfy the Unpaid Contribution Test.

See Policy Online at Criminal Law Policy 4.18 .

Commencement date

The change applies to applications for legal aid determined on or after 2 July 2018.

Contact for further information

Please contact the In-house Counsel Unit for any questions about the change on legalpolicy@legalaid.nsw.gov.au or contact Aideen McGarrigle on 9219 5701.