Law Council of Australia

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Extraordinary step of preventative detention requires further reflection

7 December 2023

Concerns the Law Council of Australia has already made public in relation to Parliament’s response to the NZYQ decision have been intensified by the preventative detention measures, which were passed by both houses of Parliament this week.

The Law Council recognises that the objective underlying the measures, including its new preventative detention regime, is community safety.

The Law Council has long argued that preventative detention should only be allowed in exceptional circumstances; must only be imposed after a fair hearing by a court where the affected person has the opportunity to access and contest the evidence relied upon; and the court is satisfied, to a high degree of probability, that such an extraordinary measure is necessary and reasonable in view of the level of risk posed by the affected person. The Law Council recognises that certain features of the latest measures reflect key safeguards which in its view must apply to preventative detention.

“However, as we have said since the Government began developing a response to the High Court’s NZYQ decision, adequate time must be provided to consider all the implications of the approach being taken,” Law Council of Australia President, Mr Luke Murphy said.

The Law Council holds grave concern in relation to the amendments stipulating a mandatory penalty of imprisonment, for at least one year, in relation to the offences of contravening a Community Safety Supervision Order (CSSO) and related offences for interference with monitoring devices. This provision, which compounds the problem of mandatory sentence provisions contained in the Migration Amendment (Bridging Visa Conditions) Act 2023 (Cth) and other amendments in the Migration Amendment (Bridging Visa Conditions and Other Measures) Bill 2023 (Cth) (the Bill), should be repealed. The Law Council has long maintained that these types of provisions are arbitrary and limit an individual’s right to a fair trial by preventing judges from imposing an appropriate penalty based on the unique circumstances of each offence and offender.

Had adequate time been afforded, further scrutiny should also have occurred in relation to several other provisions in the Bill. These include ensuring that persons who were convicted of serious foreign offences and are subject to a community safety order (CSO) had access to a fair trial. The Bill’s objects should support rehabilitation and offenders should not be penalised in practice for a lack of access to rehabilitation services. Consideration of whether the duration of CSOs—three years—is appropriate is needed.

The thresholds for making CSOs must also be carefully calibrated. Given the serious curtailments on an individual’s liberty that could be authorised by these orders. The Law Council expresses caution about civil evidence and procedure rules applying in relation to CSO proceedings and the threshold for CSSOs which only require the court to be satisfied on a balance of probabilities regarding the finding of unacceptable risk. The need for a more demanding threshold reflects the close connection of post-sentence orders with the criminal process, the grave consequences of the imposition of a post-sentence order, and the fraught nature of making predictions about a person’s future risk of offending.

The Law Council also notes that the interactions between the existing Bridging Removal Pending Visa (BVR) regime and the amendments now proposed by the Bill are complex and require additional scrutiny. CSSOs and the BVR restrictions may provide for similar kinds of conditions. While the Bill states that the CSSO conditions take precedence where inconsistency occurs, there is potential for a person affected to become confused by the conditions in their BVR compared to a CSSO, and for inadvertent breaches to occur as a result.

The Law Council is concerned that in practice, the new BVR regime will continue to affect most of the NZYQ released cohort. This regime lacks many of the safeguards which are attached to the CSO regime. For example, persons may be subject to conditions such as electronic monitoring based on lower thresholds of risk assessment, without oversight by a court, time limits or periodic review. One-year mandatory sentences apply for breach of these, and other, conditions. This regime continues to require urgent review, including as to how it sits alongside the CSO regime.

In contrast with existing state, territory and federal schemes for managing the risk of serious offences being committed by offenders which apply equally to those who commit certain kinds of offences, the Law Council remains highly concerned that the NZYQ regime as a whole—incorporating both the CSO regime but also the BVR regime already passed—is disproportionate and punitive in its application to a small group of non-citizens.

“Finally, the Law Council again emphasises that the enactment of these extreme measures necessitates the establishment of a dedicated and additional Commonwealth legal assistance scheme for legal advice and representation of individuals who are either party to a CSO proceeding or subject to conditions under the BVR regime already in place.”

Contact: Kristen Connell, P. 0400 054 227, E. kristen@talkforcemedia.com.au

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