Rob Stary: 'Indefinite detention is dangerous, wrong'

Rob Stary is calling for a rehabilitative rather than punative approach.
Thursday, July 28, 2016

Human rights lawyers are opposed to Prime Minister Malcolm Turnbull's plan to introduce laws that would allow people who have been convicted on terrorism charges to be held in prison indefinitely.

The new law, first mooted in November, would allow a judge to determine whether or not a person is a “high-risk terrorist offender” and keep them in prison after they have served their sentence. If passed it would allow control orders to be placed on children as young as 14 years of age. It also introduces a new offence of “advocating genocide”.

Turnbull and Attorney-General George Brandis want this new law to be debated as soon as parliament resumes. To date, it has received bipartisan support.

Shadow Attorney-General Mark Dreyfus said on July 25: “I'm encouraged by the approach taken by the government so far on proposed national post-sentence detention legislation.

“It's likely to be a controversial measure in many quarters and a careful approach is necessary...”

If the bill passes, states and territories would have to amend their laws relating to indefinite imprisonment.

Criminal defence lawyer Rob Stary believes this punitive approach will be counter productive. He told : “Indefinite detention of someone considered to be a terrorist is a dangerous thing.

“We already know that the longer people are placed in solitary confinement and placed in a maximum security prisons, the more they become alienated and ostracised from their communities, particularly where there are only superficial attempts at reform and deradicalisation.

“We already have control orders and preventative detention to monitor offenders in the community. People who have not been reformed will never reform in a prison system that has a central focus on retribution.

“This announcement may have some crude political appeal. But for any indefinite detention there has to be a sound philosophical basis, and in this case there has been no proper analysis of the consequences of indefinitely detaining an offender.”

NSW Council of Civil Liberties president Stephen Blanks said the proposed legislation was a distraction from really dealing with the risk of terrorism.

“People who have been convicted of serious terrorism offences are in jail for many years to come. We're not being told who is about to be released that they're concerned about”, Blanks told the ABC on July 25,/a>.

Fiona McLeod, president-elect of the Law Council of Australia, told The Sydney Morning Herald the government's proposal was a "serious concern". She was also concerned about a judge making the decision about a person's indefinite detention on the basis of information given by government agencies.

Stary said he was also concerned about the process of law. “For a judiciary to pass sentence and then for a judge to effectively re-litigate the original charge is not democratic.”

Meanwhile, he said, Denmark and Germany are heading in the opposite direction in rehabilitating those people who have been convicted of terrorism offences.

Denmark is exploring a program whereby individuals, such as returned fighters or people who want to fight abroad, are assigned trained mentors. The approach, called the Aarhus model after Denmark's second largest city, is aimed at helping those who have been convicted on terrorism charges to integrate back into society.

Part of the program involves helping families to create the networks of support that will be needed to bring the person convicted of terrorism charges back into society. It also helps the family members of the convicted person.

“Unless you invest in reformation and rehabilitation, you will not minimise the risk of people reoffending because they become alienated and ostracised from their communities”, Stary said.

He said the punitive approach would backfire. “Man Haron Monis, who took hostages in Sydney's Lindt Cafe in December 2014, was a deranged person. He, for instance, should have been placed in a mental institution.

“Some of the young people who are being picked up in terrorism raids and charged have very little idea, or political understanding of what they are doing”, Stary said, referring to the arrests of five teenagers in Melbourne in April 2015 on suspicion that they were going to carry out an act of terror.

The men, aged between 18 and 19, were taken into custody by 200 police officers in early morning raids just before last year's Anzac Day marches. It is alleged that they had links to an Islamic State recruiter in Britain and were plotting to attack police and the public with swords during the Anzac Day centenary commemorations.

One man was charged, one was given a preventative control order lasting 14 days and the rest were released without charge.

“People should not be held in prison or charged on the basis of speaking to someone”, Stary said. He is worried that people caught up in similar situations would become the victims of any new law that allowed indefinite detention.

“Indefinite detention is an extremely dangerous solution because it will not rehabilitate: it will do the reverse. It will turn people into hardened criminals.”

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