Post-sentence detention and supervision in New South Wales: Constructing the subject as a high risk offender

Abstract

This Thesis examines the Terrorism (High Risk Offenders) Act 2017 (NSW) (THRO Act). The THRO Act constructs a post-sentence supervision and detention regime for people who are purported to pose an unacceptable risk of committing a serious terrorism offence. The THRO Act is engaged after expiry of a person’s sentence under the criminal law. Its legislative intent is to protect the community from terrorism. Unlike other post-sentence supervision and detention regimes which link prospective risk to past offending, a person subjected to THRO orders may not have committed a terrorist offence.

The THRO Act is purported to prevent harm, but causes harm instead. While the numbers of people the THRO Act has been used against are small, its impact is profound. In this Thesis, I analyse how the THRO Act works in practice and excavate its political substrata to understand the ways in which it (re)shapes relationships between people and the State. To achieve these aims, I build on existing criminal law theory analyses with critical theory. By engaging with critical theory, I am able analyse the THRO Act on a deeper level, exposing the THRO Act’s political dimensions.

I make three main arguments. First, the THRO Act allows violence: it causes pain and harms people. Second the THRO Act engages in Othering: the State uses it to construct people as not belonging. Othering legitimises the THRO Act’s violence and is a form of violence itself. Third, the THRO Act creates a state of exception: it suspends an otherwise prevailing juridical order which allows violence to be clothed in legality.