Explainer: Migration and Other Legislation Amendment (Bridging Visas, Serious Offenders and Other Measures) Act 2023
Analysis
On 6 December 2023 the Federal Parliament passed the Migration and Other Legislation Amendment (Bridging Visas, Serious Offenders and Other Measures) Act 2023 (the Act), in response to the High Court’s decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & anor that indefinite immigration detention is unlawful.
The Act introduced a new ‘community safety order’ regime applicable only to people released from indefinite detention, allowing the Minister for Home Affairs or the Minister for Immigration (Minister) to apply to a court for a three-year detention order or supervision order in respect of a person who has been convicted of certain violent or sexual offences (either in Australia or overseas) and poses an “unacceptable risk” of committing another such offence in the future.
The preventive detention regime introduced by the Act is modelled on the post-sentence regime for high-risk terrorist offenders.[1] However, it departs from it in several important respects. ‘Community safety orders’ can be made in relation to people who are in the community, not in custody, and they can be made based on convictions imposed by foreign courts.
The measures introduced by the Act raise several immediate concerns, including the following:
Discriminatory Post-Sentence Scheme: The Act creates a separate post-sentence regime that targets a small group of migrants and refugees. While the regime has been framed as a measure to protect the community, it is limited to the particular group of non-citizens released from immigration detention following the High Court’s orders in NZYQ. For this group – and only this group – the Act introduces a new regime to significantly curtail their liberty on the basis of hypothetical future conduct. People in this group do not present any greater risk of future offending than other citizens or non-citizens who are not subject to the regime.
Flawed risk assessment: The risk assessment mechanism is weighted against people who may be subject to an order. An application for a ‘community safety order’ must initially involve an assessment by a ‘relevant expert,’[2] whose report must reflect on participation by the person in ‘rehabilitation or treatment programs.’[3] In making a ‘community safety order,’ a court must consider both the expert report[4] and, separately, the ‘treatment or rehabilitation programs’ engaged in by the person. Considering that ‘community safety order’ applications will be made years after a person has served their sentence, any evidence in relation to ‘treatment or rehabilitation’ will be considerably dated, if it is available at all.
Because of their visa status, non-citizens are routinely denied access to rehabilitation and treatment programs available to others in prison.[5] Non-citizens are often denied parole and access to post-release treatment programs, on account of their visa status.[6] Solely because of their visa status, non-citizens will be prevented from providing the forms of evidence that would weigh against the making of a ‘community safety order.’
Uncertain interaction with the BVR regime: The government has already introduced a mechanism for the grant of Bridging ‘R’ visas to people released from immigration detention.[7] Those visas have been granted to at least 142 people released from detention following the High Court’s orders in NZYQ.[8] Bridging ‘R’ visas are subject to extraordinary restrictions, including 28 mandatory conditions[9] and additional requirements relating to electronic monitoring and curfews, which must be imposed unless the Minister is satisfied that the visa-holder does not pose a risk to the community.[10] Almost all of the people recently released from detention are subject to electronic monitoring and curfew conditions.[11]
The interaction between the community safety supervision order regime and the existing Bridging ‘R’ visas is complex and uncertain. The Act provides that a Bridging ‘R’ visa will cease on the making of a ‘community safety order’[12] and be superseded by the terms of that order and a further Bridging 'R’ visa.[13] However, many of the conditions which may be imposed on a community safety order are already enforced against Bridging ‘R’ visa holders. For instance, Bridging ‘R’ visa holders are required to reside at a specified address,[14] report as directed,[15] not engage in certain forms of work[16] or take up membership of certain ‘organisations.’[17]
The ‘community safety order’ regime has presumably been introduced to pre-empt future constitutional challenges to the Bridging ‘R’ visa scheme,[18] by involving courts in the imposition of conditions which restrict personal liberty. In other words, the Act makes it clear that some of the conditions imposed on Bridging ‘R’ visas are unsuitable and disproportionate. But the Act leaves in place the shadow Bridging ’R’ visa regime that is not subject to the same judicial oversight, and restrictive conditions like electronic monitoring and curfews can still be imposed upon people who do not pose the level of risk required for the making of a ’community safety order.’Punitive conditions: the ‘community safety supervision order’ conditions[19] directly replicate the conditions of ‘extended supervision orders’ for high-risk terrorist offenders.[20] These include, for instance, conditions requiring an ‘offender’ not to operate equipment, machinery or a heavy vehicle,[21] to participate in interviews or assessments[22] and to report their daily schedule to authorities.[23] No attempt was made in the explanatory memorandum or debates to explain why these conditions are proportionate or appropriate outside the context of high-risk terrorist offenders.
This brief note summarises the key features of the Act. It is not intended as legal advice.
1. Community Safety Order regime
The Act amends the Criminal Code Act 1995 (Cth) (Criminal Code) to allow the Minister to apply for, and a court to impose, either a community safety detention order (detention order) or a community safety supervision order (supervision order) (together, community safety order).
Who can be subject to a community safety order?
The regime is limited to non-citizens who are over 18 years of age and for whom there is no real prospect of removal from Australia becoming practicable in the reasonably foreseeable future.[24]
It will apply to people who have been convicted, either in Australia or overseas, of a ‘serious violent or sexual offence’.[25]
An order may be made regardless of whether a person is currently serving a term of imprisonment or is residing in the community.[26]
What orders can be made?
(a) Detention orders
A detention order requires a person to be detained in a prison for the duration of the order.[27]
(b) Supervision orders
A supervision order does not require a person to be detained, but subjects them to certain conditions for the duration of the order, non-compliance with which constitutes an offence.[28]
A court may impose any conditions that it is satisfied, on the balance of probabilities, are “reasonably necessary, and reasonably appropriate and adapted, for the purpose of protection the community from serious harm by addressing the unacceptable risk of the offender committing a serious violent or sexual offence.”[29]
Such conditions may include electronic monitoring, the imposition of a curfew (not longer than 12 hours), submitting to personal and property searches, drug testing, regular reporting, residing at a particular address, not being present at a certain place or type of place, not communicating or associating with individuals or classes of individuals, not undertaking particular types of work, not using particular types of telecommunication including the internet, and participating in specified treatment or therapy.[30]
A community safety order of either type can be made for a maximum duration of three years.[31] However, further subsequent orders may be made.
When will the court make an order?
The Minister must demonstrate a stronger likelihood that a person will offend to justify the making of a detention order over a supervision order.
(a) Detention orders
A court may make a detention order where it is satisfied:
to a high degree of probability, on the basis of admissible evidence, that the person poses an unacceptable risk of seriously harming the community by committing a serious violent or sexual offence; and
that there is no less restrictive measure available under the community safety order regime that would be effective in addressing the unacceptable risk; and
that the conditions attaching to a person’s visa (ie the conditions on their Bridging R Visa) would not be effective in addressing the unacceptable risk.[32]
If a court is not satisfied that a detention order is necessary, it must consider making a supervision order instead.
(b) Supervision orders
A court may make a supervision order where it is satisfied:
on the balance of probabilities, on the basis of admissible evidence, that the person poses an unacceptable risk of seriously harming the community by committing a serious violent or sexual offence; and
that the conditions attaching to a person’s visa would not be effective in addressing the unacceptable risk; and
that each of the conditions, as well as the combined effect of all the conditions, are reasonably necessary, and reasonably appropriate and adapted, for the purpose of addressing the unacceptable risk.[33]
In both circumstances, the Minister bears the onus of satisfying a court that the person poses an unacceptable risk and that less restrictive measures would not be effective.
What is the process for obtaining an order?
In deciding whether or not to make an application for an order, the Minister may engage an expert to assess a person’s future risk of offending, and may compel the person to attend that assessment.[34]
The Minister may then apply to the Supreme Court of a State or Territory for either a detention order or a supervision order.[35] The application must include the information the Minister seeks to rely on, and set out the proposed duration of the order and any conditions sought. The Minister also has an obligation to disclose any information which does not support the making of an order.
A court may then appoint an expert to conduct a risk assessment of the person. An expert’s report may assess future risk of offending, past patterns of behaviour, participation in rehabilitation or treatment programs, and any relevant background of the person including developmental and social factors.[36]
Either party may also retain and rely on their own expert evidence. In general, the rules of evidence and procedure for civil matters will apply.[37]
In making a decision, a court must have regard to:
the objects of the community safety order regime;
the expert reports and the person’s participation in the assessment process;
any reports relating to the extent to which the person can be managed in the community (eg assessments for eligibility for parole);
the person’s participation in treatment or rehabilitation programs;
the person’s compliance with any previous parole conditions, any previous community safety orders, and visa conditions;
the person’s history of convictions of violent or sexual offences in Australia or overseas;
the views of the sentencing court;
whether any existing state or territory community safety orders are in effect;
any other information as to the risk of the person committing a serious violent or sexual offence; and
anything else the court considers relevant.[38]
A court may grant the order or dismiss the application. If an order is made, a court must give reasons for its decision.[39]
Where a person is unable to engage a lawyer for a community safety order proceeding, a court may make an order requiring the Commonwealth to bear the person’s costs of legal representation.[40]
What are the review or appeal rights?
(a) Variation of an order
Either the person subject to the order or the Minister may apply to add, vary or remove a condition of a supervision order. Additionally, the Minister has an obligation to apply to vary a supervision order where the Minister is satisfied that a condition is no longer reasonably necessary.[41]
There is no specific right to apply to vary a detention order.
(b) Periodic review
Every 12 months, the Minister must apply to a court for a review of a community safety order. If the Minister fails to do so, the order will cease to be in force.[42]
A person may also apply for a review at any other time, but a review will only be conducted if a court is satisfied there are new facts or circumstances which justify a review, or that it would be interests of justice to do so.[43]
A review involves the same process, and consideration of the same factors, relevant to the initial making of an order.
(c) Appeal of decision
A person (or the Minister) may appeal a community safety order to the relevant State or Territory court of appeal within 28 days (or later, with leave). An appeal is by way of rehearing – the court of appeal will have all the functions of the court at first instance and is able to receive new evidence.[44]
(d) Reporting to Parliament
Each year, the Minister must cause a report to be laid before Parliament detailing the number of applications for community safety orders made or reviewed.
Creation of new offences
Breach of a condition imposed under a supervision order will constitute an office attracting a maximum penalty of 5 years imprisonment or 300 penalty units or both, and a mandatory minimum penalty of one year imprisonment.[45]
If a person is required by a supervision order to wear a monitoring device, it is also an offence for that person or any other person to interfere with the functioning of that device.[46]
The offences do not apply if a person has a reasonable excuse.[47]
2. Amendments to the Migration Act
Interaction between BVR regime and preventive detention regime
The amending Act inserts a new s 76AA in the Migration Act which provides that, where a community safety order is made, any other visa (other than a criminal justice visa) ceases to be in effect and the person is taken to have been granted a BVR.
If a person is subject to a community safety order, then their BVR must not include the conditions imposing a curfew or electronic monitoring (presumably because a court will already have considered whether such conditions are appropriate under the order). While a community safety order is in force, the Minister cannot invite the person to apply for another BVR or grant another BVR.
If a person is subject to a detention order, their BVR is taken not to include conditions that they are unable to comply with while detained. If a person is subject to a supervision order, the conditions of that order prevail as to any inconsistency with the conditions of their BVR.
Changes to the BVR regime
The Act also makes further changes to the BVR regime that was introduced by the Migration Amendment (Bridging Visa Conditions) Act 2023 (Amendment Act):
Under the Amendment Act, a visa holder may make representations about why the BVR should not be subject to Condition 8620 (curfew) and Condition 8261 (electronic monitoring).[48] This Act amends the test so that the Minister must grant the person a new BVR without those conditions if satisfied that the conditions “are not reasonably necessary for the protection of any part of the Australian community”.[49]
This Act creates three new offences for breaching conditions prohibiting the visa holder from performing certain work or participating in certain activities (Condition 8622),[50] going within a particular distance of a school, child care centre or day care centre (Condition 8623),[51] and contacting (or attempting to contact) the victim of an offence involving violence or sexual assault, or a member of the victim’s family (Condition 8624).[52]
This Act introduces new powers for authorised officers to install, fit, remove, operate and repair electronic monitoring devices.[53] It also confers broad powers on authorised officers to collect, use or disclose to any other person information – including personal information – about a visa holder who is subject to Condition 8261 (electronic monitoring) for certain purposes.[54]
3. Surveillance and monitoring powers
The Act also makes amendments to the Crimes Act 1914 (Cth), the Telecommunications (Interception and Access) Act 1979 (Cth) and the Surveillance Devices Act 2004 (Cth) to extend the operation of the existing surveillance warrant regime. This allows officers to monitor people and collect information for the purposes of deciding whether to make an application for a community safety order, or for assessing a person’s compliance with an order.
Footnotes:
[1] Introduced by the Counter-Terrorism Legislation Amendment (High Risk Offenders) Act 2021, which amended the Criminal Code Act 1995.
[2] Criminal Code s 395.9, s 395.43.
[3] Criminal Code s 395.9(9)(d),(e), s 395.43(7)(d),(e).
[4] Criminal Code s 395.11(1)(b).
[5] Paul Karp, ‘Immigration detention: Rohingya refugee NZYQ given sex offender counselling sessions in ‘very special deal’,’ Guardian 25 November 2023 < https://www.theguardian.com/law/2023/nov/25/immigration-detention-rohingya-refugee-nzyq-given-sex-offender-counselling-sessions-in-very-special-deal>
[6] For instance, in Victoria, the 2018 edition of the Parole Manual noted that: ‘The Board will ordinarily avoid paroling such a prisoner until they have exhausted any such challenges [in relation to their visa status].’ See <https://www.adultparoleboard.vic.gov.au/system/files/inline-files/Adult%20Parole%20%20Board%20-%20Parole%20Manual%20-%202018%20-%20FINAL.pdf.>
[7] Migration Amendment (Bridging Visa Conditions) Act 2023 (Cth).
[8] Paul Karp, ‘If Labor wants to break a high court losing streak, it must take the drafter’s pen off Peter Dutton,’ The Guardian 4 December 2023 <https://www.theguardian.com/australia-news/2023/dec/04/if-labor-wants-to-break-a-high-court-losing-streak-it-must-take-the-drafters-pen-off-peter-dutton>
[9] Subcl 070.612(1) of Schedule 2 to the Migration Regulations 1994.
[10] Subcl 070.612A(1)-(2) of Schedule 2 to the Migration Regulations 1994.
[11] Angus Thompson and Paul Sakkal, ‘Worst offenders among immigration detainees could be locked up again’ Sydney Morning Herald 28 November 2023 < https://www.smh.com.au/politics/federal/high-court-publishes-reasons-for-indefinite-detention-decision-20231128-p5ena0.html>
[12] Migration Act s 76AA(2).
[13] Migration Act s 76AA(8).
[14] Subcl 070.612(1) of Schedule 2 and item 8612 of Schedule 8 to the Migration Regulations 1994.
[15] Subcl 070.612(1) of Schedule 2 and item 8543 of Schedule 8 to the Migration Regulations 1994.
[16] Subcl 070.612(1) of Schedule 2 and items 8551, 8562 of Schedule 8 to the Migration Regulations 1994.
[17] Subcl 070.612(1) of Schedule 2 and items 8615, 8616 of Schedule 8 to the Migration Regulations 1994.
[18] Several such challenges have been commenced in the High Court; see Asylum Seeker Resource Centre, ‘ASRC launches High Court challenge on overreach of new Federal Government laws’ 1 December 2023 < https://asrc.org.au/2023/12/01/asrc-launches-high-court-challenge-on-overreach-of-new-federal-government-laws/>;
[19] Criminal Code s 395.14(5)-(7).
[20] Criminal Code s 105A.7B(3)-(5).
[21] Criminal Code s 395.14(5)(f).
[22] Criminal Code s 395.14(5)(n).
[23] Criminal Code s 395.14(7)(h).
[24] Criminal Code s 395.5.
[25] A serious violent or sexual offence is one which is punishable by imprisonment for maximum period of at least 7 years, and the conduct of which involved the loss of life (or risk of loss of life), serious personal injury (or serious risk of serious personal injury), sexual assault, sexual assault of a person under 16, producing or possessing child abuse material, employing a child for the purpose of producing child abuse material, or acts done to facilitate the commission of a sexual offence against a person under 16 – see Criminal Code s 395.2(1).
[26] Criminal Code s 395.6.
[27] Criminal Code s 395.5(3).
[28] Criminal Code s 395.5(4).
[29] Criminal Code s 395.14(1).
[30] Criminal Code s 395.14
[31] Criminal Code s 395.12(5) and 395.13(5).
[32] Criminal Code s 395.12.
[33] Criminal Code s 395.13.
[34] Criminal Code s 395.43.
[35] Criminal Code s 395.8.
[36] Criminal Code s 395.9.
[37] Except in relation to evidence of a person’s compliance with conditions on parole, a previous community safety order, or a visa, or evidence of prior convictions – all of which a court may receive regardless of the rules of evidence. See Criminal Code s 395.27.
[38] Criminal Code s 395.11.
[39] Criminal Code s 395.35.
[40] Criminal Code s 395.34.
[41] Criminal Code s 395.19.
[42] Criminal Code s 395.23.
[43] Criminal Code s 395.24.
[44] Criminal Code s 395.36.
[45] Criminal Code s 395.38; 395.40.
[46] Criminal Code s 395.39.
[47] Criminal Code s 395.38(3), 395.39(4).
[48] Section 76E of the Migration Act.
[49] Migration Act s 76E(4)(b). Currently, the Minister must be satisfied that the person “does not pose a risk to the community”: s 76E(4)(b).
[50] Migration Act s 76DAA.
[51] Migration Act s 76DAB.
[52] Migration Act s 76DAC.
[53] Migration Act s 76F(1).
[54] Migration Act s 76F(2).