Imprisonment of migrants without charge would be a cruel and costly mistake

The Human Rights Law Centre and Asylum Seeker Resource Centre have condemned the Albanese Government’s proposed introduction of a preventive detention regime that would create a parallel legal system allowing migrants and refugees to be imprisoned on the basis of what they might do in the future.

The proposed laws were introduced in the Senate late yesterday in the form of amendments to the Government’s Migration Amendment (Bridging Visa Conditions and Other Measures) Bill 2023, which seeks to patch up gaps in the legislation rushed through Parliament in the week after the High Court ruled indefinite immigration detention was unlawful.

The preventive detention regime would allow the Minister for Immigration to apply to a court for an order that a person affected by the High Court’s decision be detained in a prison or be subject to restrictive supervisory conditions in the community, if there is an ‘unacceptable risk’ that a person will commit a serious violent or sexual crime in future. To grant a detention order, a court must be satisfied of the risk to a ‘high degree of probability’ and need only be satisfied on the ‘balance of probabilities’ to make a supervision order.

A detention or supervision order can be made at any time, outside of a criminal sentencing process after a person has been found guilty of any offence. The preventive detention regimes that already exist use methods to assess future risk of offending that have been widely criticised and frequently found to be inaccurate.

Sanmati Verma, Acting Legal Director at the Human Rights Law Centre, said:

“The government and opposition are intent on setting up people recently released from detention to fail. Some, but not all, were convicted of crimes – but in all cases, they served their sentence years ago. Because of their visa status, people were denied access to rehabilitation and treatment that is supposed to be the purpose of time in prison. Leaving prison is difficult for everyone, but because of their visa status these people were denied the basic programs that other people have on their release.”

“Ignoring this, the government and opposition want us to believe that the only way to keep the community safe is to surveil or imprison every single one of this group of migrants and refugees for the rest of their lives. The Government is seeking to replace one impermissibly punitive regime – indefinite immigration detention – with another.”

Hannah Dickinson, Principal Solicitor and Head of Legal at the Asylum Seeker Resource Centre, said:

“The government and opposition have not explained why they think people born outside Australia pose any different risk from people born in Australia. There are already stringent laws managing risk in the community. We trust our justice system to do its job, holding people accountable for offending and facilitating rehabilitation and community safety. Those laws apply to everyone, regardless of where they were born.”

“Why, then, do the government and opposition insist on rushing through an additional set of laws for people based solely on where they were born? When a government enacts damaging and punitive laws without justification, and without regard for proportionality or fundamental principles like equality before the law, we must ask where we draw the line.”