Labor’s new punitive refugee laws criticised

December 13, 2023
A November 2022 protest for refugee rights in Gadi/Sydney. Photo: Zebedee Parkes

A forum organised by the Refugee Action Collective (Victoria) and the Refugee Action Coalition (Sydney) on December 11 discussed the High Court’s decision on indefinite detention and the racist backlash.

Sanmati Verma, from the Human Rights Law Centre, outlined the High Court’s arguments on the illegality of indefinite detention. She said a 1992 law stipulated that non-residents without visas must be detained. This has led to people being detained for a very long time — the average period being 800 days. However, one person has been held for 16 years.

A number of court cases challenged the constitutional validity of this law.

Lawyers for detainees have argued that detention is a form of punishment and only a court of law, not the executive, can impose a punishment on an individual.

Previously, the High Court accepted the government’s argument that detention was not intended as punishment. Rather, it was an administrative measure to facilitate the non-resident’s deportation.

Most recently, the High Court accepted the argument for a detained refugee (NZYQ) that, since no country would accept him, deportation was not possible and his continued detention was for punitive, not administrative, reasons.

Verma noted that NZYQ, a stateless Rohingya man who fled from Myanmar, had completed a prison sentence for child sex abuse. But, since leaving prison, he had spent 5 more years in immigration detention.

NZYQ was released, along with others in a similar situation. 

Labor, with the support of the Coalition, then hurriedly passed a new law imposing 30 conditions on the people who were released — 28 of which are mandatory and 2 (curfews and electronic monitoring) can be waived at the minister’s discretion.

It also sets out a mandatory minimum sentence of 12 months in prison for breaking these conditions. Being one minute late on a curfew could result in a year in jail.

The ankle bracelet takes 3 hours a day to charge, meaning the person must sit beside a power point for those hours.

Verna said that the new law will be challenged in the High Court in March. Perhaps expecting to lose, Labor put up another law enabling judges to impose community safety orders, modelled on anti-terrorist laws.

Ian Rintoul, from Refugee Action Coalition, said Labor is acting against its own platform, which calls for mandatory detention and indefinite detention to be abolished. He said Labor had continued Dutton’s anti-refugee policies, including boat turn-backs, offshore detention on Nauru, abandoning refugees who were sent to Papua New Guinea and the ban on taking refugees from Indonesia.

The refugees rejected under the unfair Fast Track system remain in a precarious situation, as do refugees brought to Australia from offshore detention for medical treatment.

Verma spoke about the importance of rehabilitation for all ex-prisoners, whether or not they are citizens. While regular prisons attempt to undertake some rehabilitation, this does not happen in immigration detention.

Max Costello, a retired lawyer and Refugee Action Collective activist, noted that 60,000 convicted criminals are released from prison every year. He said the number of people freed from immigration detention after the High Court decision is small, but they have attracted disproportionate attention.

Costello called for an end to the practice of cancelling people’s visas as soon as they are charged with a crime, without waiting for the outcome of the trial.

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