Australia's counter-terrorism powers, under review.

What is being reviewed.

The Bill was introduced on 12 August 2026 and referred to the Parliamentary Joint Committee on Intelligence and Security, which has called for written submissions by 2 September 2026. The Committee's stated task is to test whether the changes support the national security agencies while keeping the safeguards and oversight the public expects. That balance, between the power to restrain a person who has not been convicted and the ordinary protections of the criminal law, is what these provisions are always argued about.

Three distinct powers sit under the counter-terrorism part of the Criminal Code Act 1995 (Cth). A control order restricts a person in the community. A preventative detention order holds a person without charge for a short period. A post-sentence order keeps a convicted offender in custody, or under supervision, after the sentence ends. Each has its own division, its own test, and its own limits. This note takes them in turn.

This is a note on the law, not on any person. It explains the powers and how they are argued.

What is a control order in Australia?

A control order is a court order made under Division 104 of the Criminal Code (Cth). The Australian Federal Police applies for it, with the consent of the Attorney-General. A court can then impose obligations, prohibitions and restrictions on the person named. Common conditions include a curfew, a ban on leaving Australia, a ban on contacting named individuals or groups, limits on the use of phones, computers or the internet, a duty to report to police, and a requirement to wear an electronic tracking device.

The controls stop short of detention. The person lives in the community but under conditions. The court makes the order on the civil standard, the balance of probabilities, and must be satisfied on that standard that each condition is reasonably necessary to protect the public from a terrorist act, or to prevent support for a terrorist act. The court has to consider the effect of every condition on the person, including their work, their family and their finances.

There are firm limits on duration. A control order cannot run longer than 12 months for an adult, though a fresh order can be sought. It cannot be made against a child under 14. For a person aged 14 to 17, the maximum is three months. These are preventive orders, not punishments, which is why they can reach a person who has not been charged with any offence.

Can you be detained without charge in Australia for terrorism?

In narrow circumstances, yes. A preventative detention order under Division 105 of the Criminal Code (Cth) allows a person to be held without arrest and without charge. The grounds are tight. There must be a threat of an imminent terrorist act that the detention would help prevent, or a terrorist act must have just occurred and detention is needed to preserve evidence. The order is not a tool for questioning. A person held under it cannot be interviewed about the suspected offence beyond confirming identity and welfare.

At the Commonwealth level the periods are short. A senior AFP member can make an initial order for up to 24 hours. A continued order, made by a judge or other authorised issuer, can extend that to a total of 48 hours. State and territory laws sit alongside the federal scheme and, on similar grounds, allow detention for as long as 14 days. A person under 16 cannot be detained under these provisions, and a person aged 16 or 17 who is detained must be held apart from adults.

Preventative detention is the most exceptional of the three powers, because it removes liberty from a person who has not been charged. It carries its own safeguards: a right to be told the reason, a right to contact a family member and a lawyer, and oversight of how the power is used. The scheme has been used rarely.

What is a continuing detention order for a high-risk terrorist offender?

Division 105A deals with offenders who have already been convicted of a serious terrorism offence and are near the end of the sentence. The concern is that the sentence expires but the risk does not. The scheme lets the Minister apply to a state or territory Supreme Court for a continuing detention order, which keeps the offender in prison beyond the sentence, or for an extended supervision order, which releases the offender into the community under strict conditions.

The test is demanding. The court must be satisfied to a high degree of probability, on admissible evidence, that the offender poses an unacceptable risk of committing a serious Part 5.3 terrorism offence if released, and that no less restrictive measure would manage that risk. A continuing detention order can be made for up to three years at a time, is renewable, and must be reviewed at least once every 12 months. The extended supervision order was added to the scheme in 2021 as the less restrictive option, so a court is not left with a choice only between full custody and unconditional release.

This is post-sentence detention. It is not a further punishment for the original offence, at least in law. It is a preventive order based on future risk. That distinction is fine, and it is where much of the argument in these cases lives.

Do you have to be convicted of an offence for these powers to apply?

Not for two of the three. A control order and a preventative detention order can both apply to a person who has never been charged, let alone convicted. That is the point of them: they are preventive, aimed at a future act, and decided on the civil standard rather than proof beyond reasonable doubt. This is what sets them apart from an ordinary prosecution, where a person is presumed innocent and the state must prove a completed offence to the criminal standard.

A continuing detention order is the exception. It applies only to a person who has been convicted of a serious terrorism offence and is coming to the end of that sentence. The conviction is the gateway. Without it, the post-sentence scheme cannot be used at all.

What is the Counter-Terrorism Legislation Amendment Bill 2026 changing?

The Bill does several things. It would update the post-sentence order framework in Division 105A and strengthen the control order framework in Division 104. It would extend the control order, preventative detention and post-sentence schemes for a further three years, to 7 December 2029, and extend certain police powers in the Crimes Act 1914 (Cth) to the same date. These schemes carry sunset dates, so they lapse unless Parliament renews them, and the extension is a large part of the Bill's work.

The Bill would also amend the rules for de-listing terrorist organisations and expand protections for United Nations and associated personnel. One change is worth noting for the defence: the Bill would allow courts, in control order and post-sentence proceedings, to consider findings of guilt even where no conviction was recorded. A finding without a recorded conviction would become material a court could weigh in deciding whether to impose or continue an order.

Are these powers constitutionally valid?

Both of the main powers have survived challenge in the High Court. The control order regime was upheld in Thomas v Mowbray [2007] HCA 33, where the Court rejected the argument that making such an order was not a proper judicial function. The post-sentence continuing detention scheme was upheld in Minister for Home Affairs v Benbrika [2021] HCA 4, where a majority held that a court can order the continued detention of a convicted offender to protect the community, and that doing so is a valid exercise of judicial power rather than punishment imposed without trial.

Validity is not the end of the story. These schemes are watched closely by the Independent National Security Legislation Monitor and by the Parliamentary Joint Committee on Intelligence and Security, which is why the current Bill is before that Committee now. The recurring questions are whether the powers are used sparingly, whether the conditions imposed are truly the least restrictive available, and whether a person subject to an order gets a fair chance to answer the case, including access to the material relied on against them.

How these matters are run.

A person named in a control order application, or facing a post-sentence application near the end of a sentence, is in a contest fought on evidence and on risk. The state relies on intelligence assessments, expert risk reports, and the person's history. The defence tests each condition against the statutory question of what is reasonably necessary, argues for the least restrictive measure, and scrutinises the evidence that a court is asked to accept, including material the person may not be shown in full.

These are among the most serious matters in Commonwealth criminal practice, because liberty is at stake without a completed offence to answer. Early, careful advice matters. A person who learns that an application is coming, or that police want to speak with them, should get legal advice before anything else. For related reading, see the firm's notes on advocating terrorism and possessing violent extremist material, on encrypted evidence in serious Commonwealth cases, and the guide on what to do if police want to interview you.

Frequently asked.

What is a control order in Australia?

A court order under Division 104 of the Criminal Code (Cth), made on AFP application with the Attorney-General's consent. It can impose a curfew, a ban on leaving Australia, no-contact conditions, limits on phones and the internet, reporting duties and electronic monitoring. It stops short of detention and cannot run longer than 12 months for an adult, three months for a person aged 14 to 17, and is not available against a child under 14.

Can you be detained without charge in Australia for terrorism?

In narrow circumstances, yes. A preventative detention order under Division 105 allows detention without charge for up to 24 hours initially and up to 48 hours in total at the Commonwealth level, extended by state and territory laws to as long as 14 days. It applies only to an imminent terrorist threat the order would help prevent, or to preserve evidence after an act. A person under 16 cannot be held.

What is a continuing detention order for a high-risk terrorist offender?

An order under Division 105A that keeps a convicted terrorist offender in prison after the sentence ends. A Supreme Court must be satisfied to a high degree of probability that the offender poses an unacceptable risk of a serious terrorism offence and that no less restrictive measure would manage it. It can last up to three years, is renewable, and is reviewed at least yearly. A court can instead impose an extended supervision order in the community.

Do you have to be convicted for these powers to apply?

Not for a control order or a preventative detention order; both can apply to a person never charged, because they are preventive and decided on the civil standard. A continuing detention order under Division 105A is different: it applies only to a person already convicted of a serious terrorism offence and nearing the end of that sentence.

What is the Counter-Terrorism Legislation Amendment Bill 2026 changing?

Introduced on 12 August 2026 and before the PJCIS, it would update Division 105A, strengthen Division 104 control orders, extend the control order, preventative detention and post-sentence schemes to 7 December 2029, extend certain Crimes Act 1914 (Cth) police powers to the same date, amend the de-listing of terrorist organisations, expand protections for United Nations personnel, and allow courts to consider findings of guilt in control order and post-sentence proceedings even where no conviction was recorded.

Are these counter-terrorism powers constitutionally valid?

The High Court has upheld both main powers: the control order regime in Thomas v Mowbray [2007] HCA 33, and the post-sentence continuing detention regime in Minister for Home Affairs v Benbrika [2021] HCA 4. Both remain subject to review by Parliament and by the Independent National Security Legislation Monitor.

Primary sources: the Criminal Code Act 1995 (Cth) (Divisions 104, 105 and 105A), the Crimes Act 1914 (Cth), the Counter-Terrorism Legislation Amendment Bill 2026 on the Parliament website, and Thomas v Mowbray [2007] HCA 33 and Minister for Home Affairs v Benbrika [2021] HCA 4 on JADE.

To speak to a criminal defence lawyer, call Aaron Kernaghan on 0421 717 019.

This article is written by Aaron Kernaghan, criminal defence lawyer at Good Legal Lawyers, as at 13 August 2026. It is commentary and reflects the personal opinion of the author only. It is not legal advice, it is not a substitute for advice on your own matter, and it does not purport to be accurate or complete. Any matter referred to may be before the court and any person charged is presumed innocent. For advice on a specific matter, contact Aaron Kernaghan on 0421 717 019 or contact the firm.

More criminal-law commentary by Aaron Kernaghan.

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