Why did the Government rush detention laws through Parliament?

Andrew Giles

The Federal Government passed new laws that will introduce a “preventative detention regime” for some detainees recently released into the community.

Last month, the High Court ruled indefinite detention unlawful in Australia last month. This led to the release of more than 140 detainees, many of whom had a criminal history but had served their sentences.

The new laws allow the courts to re-detain some of those who were released and are deemed to pose an “unacceptable risk” to community safety.

Here’s what you need to know.

What happened?

Last month, the High Court ruled that indefinite detention in Australia was unlawful. This decision related to a case about a Rohingya refugee born in Myanmar known as ‘NZYQ’.

NZYQ arrived in Australia by boat in 2012. In 2015, he was charged and subsequently convicted on one count of child sexual abuse in Australia. He was released on parole in 2018 and returned to immigration detention, where he was being held indefinitely. NZYQ argued he couldn’t return to Myanmar due to fear of persecution.

High Court ruling

The High Court ruled that indefinite detainment should be a matter for the courts, not the Government. This resulted in the immediate release of NZYQ, as well as more than 140 detainees in similar circumstances.

Many of these detainees had a criminal history and had already served their sentences.

Soon after the High Court’s ruling, the Government passed laws adding strict conditions to those released, including needing to wear ankle monitors and curfews.

The detainees

Police have arrested some of the former detainees following last month’s High Court ruling.

SA police charged a 65-year-old man after receiving reports a woman was indecently assaulted at a hotel. Meanwhile, police in Sydney arrested a 45-year-old man over alleged possession of an illicit drug believed to be cannabis.

Victorian Police arrested a third ex-detainee for allegedly failing to report to police, which he was required to do as a registered sex offender. Police arrested a fourth ex-detainee in Victoria yesterday for allegedly stealing luggage from Melbourne airport and failing to comply with his curfew.

Government response

Last night, the Government passed the new detention laws through Parliament.

The main change is the introduction of a “preventative detention regime”. Immigration Minister Andrew Giles said the laws give state and territory Supreme Courts power to re-detain “the worst of the worst offenders” out of those who were released.

The regime is modelled on an existing set of laws set aside for non-citizens convicted of terrorism, which are rarely used.

New laws

The new laws will only affect the people released after last month’s NZYQ decision. They will also need to have been convicted of a “serious violent or sexual offence” carrying a maximum sentence of at least seven years’ imprisonment.

The detainees could be held for an extra three years after their sentence. The Government would need to satisfy the court that the person poses an “unacceptable risk of seriously harming the community by committing a serious violent or sexual offence”.

There’s no limit on how many times a three-year order can be imposed on the detainee. The order is subject to annual reviews.

What next?

While the new laws impact the 148 detainees, it’s not clear how many. The Immigration Minister has the power to ask the courts to re-detain any of them for at least three years.

Giles told reporters the Government has started drafting court applications to re-detain some of those who have committed “serious offences”.

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