Law Council of Australia (LCA) concerns over the Federal Government’s response to the High Court’s NZYQ decision have been intensified by preventative detention measures passed by both houses of Parliament this week.
The Migration and Other Legislation Amendment (Bridging Visas, Serious Offenders and Other Measures) Bill 2023 was created in response to the ruling last month that a nameless and stateless Rohingya man was being unlawfully detained because there was no real prospect he could be removed from Australia in the foreseeable future.
The LCA said it recognised the objective underlying the measures was community safety.
“However, as we have said since the Government began developing a response to the High Court’s NZYQ decision, adequate time must be provided to consider all the implications of the approach being taken,” LCA President Luke Murphy said.
Mr Murphy said the LCA had long argued that preventative detention should be allowed in exceptional circumstances only; must only be imposed after a fair hearing; and the court must be satisfied, to a high degree of probability, that such an extraordinary measure is necessary and reasonable in view of the level of risk posed by the affected person.
He said many other provisions deserved scrutiny, including those relating to Community Safety Supervision Order (CSSO) proceedings, with concerns over access to a fair trial; civil evidence and procedure rules; and the threshold for assessing risk being satisfaction on the balance of probabilities.
“The need for a more demanding threshold reflects the close connection of post-sentence orders with the criminal process, the grave consequences of the imposition of a post-sentence order, and the fraught nature of making predictions about a person’s future risk of offending,” Mr Murphy said.
He said the LCA held grave concerns about a mandatory penalty of imprisonment for contravening a CSSO or interfering with a monitoring device.
“The Law Council has long maintained that these types of provisions are arbitrary and limit an individual’s right to a fair trial by preventing judges from imposing an appropriate penalty based on the unique circumstances of each offence and offender,” he said.
Other concerns included the complex interactions between a CSSO and the existing Bridging Removal Pending Visa (BVR), and the potential for inadvertent breaches.
“In contrast with existing state, territory and federal schemes for managing the risk of serious offences being committed by offenders which apply equally to those who commit certain kinds of offences, the Law Council remains highly concerned that the NZYQ regime as a whole – incorporating both the CSSO regime but also the BVR regime already passed – is disproportionate and punitive in its application to a small group of non-citizens,” Mr Murphy said.
“Finally, the Law Council again emphasises that the enactment of these extreme measures necessitates the establishment of a dedicated and additional Commonwealth legal assistance scheme for legal advice and representation of individuals who are either party to a CSSO proceeding or subject to conditions under the BVR regime already in place.”