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Continuing Detention Orders NSW: The Law

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In recent years, the issue of managing high-risk offenders has gained significant attention within the criminal justice system. In response to this challenge, the state of New South Wales (NSW) introduced the Crimes High Risk Offenders Act, which empowers authorities to issue Continuing Detention Orders (CDOs) for individuals deemed to pose a substantial risk to the community. A CDO is effectively preventive detention.

Crimes High Risk Offenders Act

The Crimes High Risk Offenders Act, enacted in 2006, was a response to the need for a more robust system to manage offenders who present an ongoing danger to society, even after serving their custodial sentences. The legislation aimed to strike a balance between protecting public safety and upholding the civil liberties of individuals who have been subject to criminal convictions.


In addition to the above, the Crimes (Serious Sex Offenders) Act 2006, referred to as “the Act,” contains provisions allowing the State of NSW to seek the extension of confinement for specific individuals beyond their prescribed term of imprisonment, as well as to prolong their period of community supervision.


Within the Act, Section 14 grants the State the authority to petition the Supreme Court for a continuing detention order against a sex offender who, at the time of application, is serving a sentence of imprisonment in a correctional facility:


While serving a full-term detention sentence for:


(i) A serious sex offence, or

(ii) An offence of a sexual nature, or

(iii) Another offence being served concurrently or consecutively, or partly concurrently and partly consecutively, with one or more sentences of imprisonment as mentioned above, or


Pursuant to an existing continuing detention order.


Section 5 of the Act defines a ‘serious sex offence’ to encompass a wide range of sexual offences, including those carrying a maximum penalty of at least seven years of imprisonment. These offences include:


  • Engaging in a sexual act with a child under 10,
  • Aggravated sexual touching,
  • All forms of sexual assault,
  • Persistent sexual abuse of a child,
  • Procuring or grooming a child under 16,
  • Involvement in sexual servitude, and
  • Producing, disseminating, or possessing child abuse material.

Section 17 of the Act empowers the court to issue a continuing detention order only when it is “convinced to a high degree of certainty that the offender presents an unacceptable risk of committing a serious sex offence if not kept under supervision, and that adequate supervision cannot be ensured through an extended supervision order.


Furthermore, Section 18 stipulates that a continuing detention order becomes effective upon its issuance or the offender’s release, whichever comes later, and remains in effect for the duration specified in the order, which may not exceed five years.


The section also allows for subsequent applications for such orders at any time, theoretically enabling an offender to remain incarcerated until their passing, irrespective of the penalty initially imposed by the sentencing court.


The duration of orders issued under the ‘Crimes (High Risk Offenders) Act’ and ‘Crimes (Serious Sex Offenders) Act’ is capped at five years, while orders under the ‘Terrorism (High Risk Offenders) Act’ are restricted to a maximum of three years.

It is worth noting that additional applications for such orders can be submitted at any point in time.

Protecting the Community


The primary objective of the Crimes High Risk Offenders Act is to safeguard the community from potential harm posed by high-risk offenders. By allowing for the issuance of Continuing Detention Orders, the Act provides a legal mechanism to keep individuals with a history of serious criminal behaviour off the streets.


Rehabilitative Efforts


While the Act focuses on public safety, it also acknowledges the importance of rehabilitation. It mandates periodic reviews of offenders’ cases, which allows for an assessment of their progress and potential for rehabilitation. This ensures that individuals are given the opportunity to reintegrate into society when deemed safe.


Criteria for Issuing a CDO


Under the Crimes High Risk Offenders Act, a CDO can be issued if the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk, that the offender poses a serious risk of committing a serious sexual or violent offence if released into the community. This high threshold ensures that CDOs are not applied arbitrarily and are reserved for cases involving significant risk.


Periodic Review Mechanism


The Act also establishes a rigorous review process for individuals subject to CDOs. The Supreme Court is required to conduct periodic reviews to assess whether the continued detention remains justified. This safeguard ensures that offenders are not held indefinitely and provides opportunities for reintegration when appropriate.

Implementation of Continuing Detention Orders

Multidisciplinary Assessment


Before a CDO is ordered by the Supreme Court of NSW, a thorough assessment is conducted by a multidisciplinary team, including psychologists, psychiatrists, and legal experts. This comprehensive evaluation helps inform the court’s decision, ensuring that it is based on a balanced consideration of all available evidence.


Role of the Supreme Court


The Supreme Court plays a pivotal role in the implementation of CDOs. It is responsible for evaluating the evidence presented, weighing the potential risks, and making a determination on whether a CDO is warranted. This judicial oversight ensures that decisions are made within a framework of legal scrutiny.

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Implications on Civil Liberties and Public Safety

Balancing Act


One of the critical challenges in implementing the Crimes High Risk Offenders Act is striking a balance between protecting public safety and respecting the civil liberties of individuals subject to CDOs. Critics argue that the Act may infringe on the rights of offenders who have completed their custodial sentences. Striking this balance is a complex task that requires ongoing scrutiny and refinement.


Accountability and Transparency


To address concerns regarding accountability, it is imperative that the implementation of CDOs be transparent and subject to rigorous oversight. This includes regular reporting on the number of CDOs issued, the criteria used for assessments, and the outcomes of periodic reviews. Such transparency helps maintain public trust in the system.


The Crimes High Risk Offenders Act and the provision for Continuing Detention Orders represent a significant step forward in managing high-risk offenders in New South Wales. By establishing a legal framework that emphasises public safety while also considering rehabilitation, the Act strives to strike a delicate balance between safeguarding the community and respecting the rights of individuals. Ongoing evaluation and transparency are crucial in ensuring the Act achieves its intended objectives while upholding the principles of justice and human rights.


If you have a family member in custody and is subject to an application for CDO or an extended supervision order, contact our commonwealth parole lawyers in Sydney today. We can provide you with free legal advice for up to 15 minutes.

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