Fight to keep unrepentant terrorists behind bars

Continued detention orders can be applied to keep a terrorist being released into the community if they pose an unacceptable risk.

But the national security watchdog recommended they be scrapped because they were based on an assumption a person would reoffend, which was contrary to Australia's legal system.

Australian Federal Police Acting Deputy Commissioner for the National Security portfolio Krissy Barrett said the threshold remained "very high".

"The framework as it exists at the moment is scalable and proportionate and allows appropriate consideration," she said.

"Raising that threshold would would make it all but impossible to be able to satisfy in a court."

First Assistant Secretary for Security and Counter-Terrorism for the Attorney-General's Department Brooke Hartigan noted only two continued detention orders had been used since their commencement in 2017.

"They've been used judiciously and have been obtained judiciously, (that) suggests that the threshold is probably at the right level," she said.

Asked about the rights of people being detained before they had committed a crime, the AFP's Stephen Nutt said terrorism was different to other types of offending.

"The impact on the Australian identity ... is why there's so much emphasis on preventing acts of terrorism and so much effort is put on there because of the consequences for a society, consequences for the identity of a country who has suffered an act of terrorism," he said.

The detention orders should be a last resort but remained necessary, analysts from the Australian Strategic Policy Institute argued.

"The reality is there are a minority of people who will not be rehabilitated," executive director Justin Bassi said.

Andrew Dyer said while there was a place for detention orders, if it could be proved to a high enough degree that a person would go on to harm others, that standard cannot be reached with this scheme.

This was because of the unreliability of risk predictions and the threshold to prove why detention was needed when enhanced supervision after prison could mitigate the risk, Dr Dyer said.

Human Rights Commissioner Lorraine Finlay echoed concerns about unreliability.

"Without a valid way of predicting the future risk of committing a serious .. offence, there is no longer a sufficient basis for a continuing detention order regime," she said.

Continued detention orders were unnecessary and disproportionate, the Law Council of Australia argued.

A less restrictive extended supervision order can be imposed on high-risk offenders after they complete their sentence.

It allows authorities to closely monitor recently released offenders and impose a number of other restrictions.

The Law Council's David Neal SC said the same burden of proof used in the person's criminal trial needed to be applied as the orders effectively extended their sentence.

Two extended supervision and no continued detention orders are in place.

Australian Associated Press