Greens Senator Sarah Hanson-Young speaks to journalists (file)
Sarah Hanson-Young says courts not politicians should be making decisions on detention. Image by Mick Tsikas/AAP PHOTOS
  • politics

Concerns new measures targeting detainees are overreach

Dominic Giannini November 21, 2023

The Albanese government and federal opposition are facing a backlash over a lightning-quick parliamentary response to a High Court ruling on long-term detainees.

More than 90 people being held in immigration detention have so far been released after the High Court ruled keeping them in indefinite detention was illegal. 

Three murderers and several sex offenders are included in the numbers but many were also detained and awaiting deportation after committing more minor offences.

Labor and the coalition teamed up to ram emergency legislation through parliament to put strict monitoring requirements on the newly released cohort and impose criminal punishment for visa and reporting breaches. 

Greens senator Sarah Hanson-Young said it was “bad law-making and was very disappointing” for Labor to back the coalition’s scaremongering. 

She also reacted to reports the government was looking at extending a regime that allows police to apply to have terrorists detained through preventative detention to non-citizens who had been sentenced for serious offences.

The High Court of Australia (file)
 More than 90 people in immigration detention have been released following the High Court ruling. Image by Mick Tsikas/AAP PHOTOS 

“It shouldn’t be up to politicians to decide how long or who should be locked up in prison, it should be up to a court,” Senator Hanson-Young told ABC TV on Tuesday.

Greens senator Nick McKim added it was up to the courts to punish people, “not opportunistic politicians”.

“Giving politicians the power to arbitrarily punish people is a dangerous step down the road towards tyranny,” he told AAP.

Independent MP Kylea Tink is set to move a private member’s bill to limit immigration detention when parliament resumes on Monday.

The High Court’s ruling was based on the premise that indefinite detention was a form of punishment and only the courts had the power to discipline criminals, not the minister.

The home affairs minister has flagged further legislation and reform after the court releases its full reasoning for its decision in the new year.

Law Council of Australia president Luke Murphy said the new legislation needed to be urgently reviewed with concerns of an imbalance between individual liberty and community safety.

He said the measures amounted to an “inherent lack of equality before the law” and pointed to the fact serious offenders who served time behind bars were routinely released around Australia every day and managed by state and territory authorities.

Mr Murphy pointed to the mandatory sentencing of one year in prison for people on the new special visa who failed to notify the minister of a change in personal circumstances within two days.

Leader of the Opposition Peter Dutton (file)
 Peter Dutton says the preventative detention measure won’t be a punitive court-like sentence. Image by Lukas Coch/AAP PHOTOS 

“The imposition of mandatory sentences for breach of conditions restricts the right to a fair trial and that compromises the independence of the judiciary,” he told ABC radio.

“There must be independent oversight to ensure everyone is treated equally,” he said, adding there was no evidence non-citizens were any more dangerous than Australians.

The indefinite time limit imposed on the conditions and no judicial oversight of their applications made the laws a “very unjust, harsh and disproportionate response”, he added. 

Any new preventative detention measure needed judicial oversight and the released detainees needed proper access to legal representation, he said.

Opposition Leader Peter Dutton said the preventative detention measure wouldn’t be a punitive court-like sentence and that the coalition would support any measure to re-detain the cohort.

“These are very significant criminals,” he said.

“We supported legislation to tighten up what the government had proposed and we’ll support further tightening up, or further legislation which is going  to stop more people from being harmed.”