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Michael Bradley

Labor and the Coalition race to the bottom on detention as two bills pass

For a not-racist country, we sure expend a lot of time and lawmaking energy on moral panics about people based on distinctions that are unequivocally racial.

In Canberra at the moment, the only game is what to do about “those people” — the cohort of refugees and asylum seekers who had been comfortably concealed in the government’s shadow prison system of “administrative immigration detention” until the High Court blew it up with its decision in the case of NZYQ and ordered his immediate release — along with a few hundred other individuals.

The government’s response has been unedifying, the Coalition’s positively feral. The media is reporting the story through its standard lens of binary politics, ignorant of and uninterested in the legal, moral or social issues on which everyone should be focused. Instead, it’s a race to, and beneath, the bottom.

The latest manifestations of the panic are two bills being rammed through Parliament this week in a mad rush. One of them, containing 70 pages of amendments, was given to senators three hours before they were required to vote on it. This is the opposite of responsible legislation.

First is a new set of amendments to our citizenship law, in response to the High Court’s recent decision in the case of Benbrika. The court having finally crushed the government’s penchant for banishing undesirables from the realm by executive order, we’ll now have a new regime where this power is given to the courts instead.

The scheme will apply to any Australian citizen over the age of 14 who would not become stateless if their citizenship was revoked. That includes all Indigenous peoples, who in a previous case the court ruled cannot be aliens, therefore can’t be deported and therefore can’t be stateless. All in all, more than half the population is potentially vulnerable to this law.

If such a person is convicted of a range of serious offences (terrorism, espionage, that kind of thing) and sentenced to at least three years by a court, then the government will be able to ask the court to also order that the individual cease to be an Australian citizen as part of the punishment for their crime.

The test the court will have to apply is whether the person’s actions demonstrate that they have “repudiated their allegiance to Australia”, which is defined partly by reference to “repudiation of the values, democratic beliefs, rights and liberties that underpin Australian society”.

This is wholly new legal territory, requiring judges to make determinations about what these concepts actually mean. For example, what are Australian values? There is no jurisprudence on this, just a long series of pronouncements by Liberal Party leaders dating back to John Howard.

Weird, yes, but unconstitutional, no. This law will pass muster on the High Court’s rigorous insistence that the ruling of criminal guilt and punishment is exclusively a matter for the courts, not the executive. There’s no reason in principle why revocation of citizenship cannot be wielded as a punitive measure, and there is a logical link between the listed offences and what “allegiance” seems to have come to mean.

The second bill creates another new regime: “community safety detention orders”, targeted specifically at the cohort of “hardened criminals” freed by the NZYQ decision. For all his bleating, apparently even Peter Dutton recognises that the court has foreclosed indefinite extrajudicial detention for this group of people who the government will not be allowing to live here but who also can’t be deported anywhere else.

Consequently, we have another scheme whereby the courts are to be recruited to impose imprisonment on individuals not as punishment for specific crimes but to protect the public from them.

This law applies to non-citizens who have been convicted of a serious violent or sexual offence carrying a sentence of at least seven years, either in Australia or a foreign country. It’s also necessary that there be no real prospect of their being deported and that they are over 18.

External to whatever prison sentence they’ve previously served, the government will be able to ask a court to order that such a person be re-detained if it agrees that they pose an unacceptably high risk of committing another serious offence in the future.

The wording is identical to that of the existing “continuing detention order” scheme that the previous government instituted for people convicted of terrorism offences.

Again, since it’s the court that gets to make the decision, not a minister, the separation of powers problem is avoided. However, there is still a potential constitutional problem, because of the novel element of overseas convictions. 

The inevitable challenge to this law will focus attention on where NZYQ has left things, but also the so-called Kable doctrine. The court has been reasonably comfortable with the idea of courts getting powers to lock people up not for crimes they’ve committed but crimes they might commit, provided the way it’s done preserves their “institutional integrity” as the repositories of the rule of law. Where the limits of this notion lie is anyone’s guess.

It’s obvious, now extrajudicial detention is off the agenda, that the government is going to push the boundaries of the judicial variety, trying to co-opt the courts into ever-increasingly harsh measures for punishing people who are not “us”.

The High Court will hopefully notice the trend and put a stop to it — because, to note the irony, all this mania about locking people up because we fear what they might do, instead of addressing the problem that our system doesn’t prevent, detect or punish the actual crimes that do plague us, is antithetical to the rule of law and the values, rights and liberties that underpin Australian society.

The major parties are chasing a chimera, prodded and cheered by an uncaring media. It’s madness.

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