Origins of the New “Preventative Detention” Laws

On 8 November, the High Court overturned 20 years of immigration detention precedent, when it ruled that criminals who cannot be safely deported cannot be detained in Australia indefinitely.

Normally, non-citizens are deported if they commit a crime for which they are sentenced to a year or more in prison. This means that some serious criminal offences, like theft and assault, do not necessarily lead to deportation. But any more serious than that and a migrant will be sent back to their home country after serving their prison sentence.

The exception, however, is where deporting the person is impossible or deemed unsafe. This has been the case for criminals from, for example, Afghanistan, Myanmar and Sudan.

The 8 November ruling necessitated the release of 140 detainees into the community. The scandal only deepened when the men started to re-offend; as of Thursday, five of the former detainees had been arrested.

The offences included theft, failing to meet reporting obligations, and cannabis possession. More dramatically, an Afghan man was arrested after allegedly assaulting a woman at the hotel where he is being accommodated in Adelaide.

The government is being slammed as “gutless” by the opportunistic Shadow Immigration Minister, Dan Tehan, and the tabloids. More probingly, LNP Senate leader Simon Birmingham asked why the government waited until after the 8 November decision to revise the laws on indefinite detention.

Albanese has now moved to remedy the situation by passing new legislation (without debate) in a 9pm emergency parliamentary sitting on Wednesday, which was not a scheduled sitting day. 

The new law allows a court to have a non-citizen indefinitely detained if they committed a crime that carries a sentence of 7 years or more in prison. The court must come to the conclusion that “the person poses an unacceptable risk of committing a serious violent or sexual offence.” The 7-year threshold puts the measure beyond most drug or fraud charges, most non-lethal violence, and even “low-level” sex offences. 

But you have to wonder – if a person is convicted beyond reasonable doubt of murder, grievous violence, or a serious sex crime, and has an obvious risk of re-offending as assessed by the court, why then, citizen or not, should they ever be released in the first place?

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