The Albanese government is introducing amendments to allow courts to order the detention of some people released as a result of the high court’s ruling on indefinite immigration detention.
Why is this happening?
On 8 November, the high court ruled that immigration detention is not constitutional where there is “no real prospect” of deportation becoming “practicable in the reasonably foreseeable future”.
The decision resulted in the release of at least 148 people whose detention met that condition. The opposition whipped up panic and Labor unveiled several packages of emergency legislation including the latest on preventive detention.
How does it work?
Under the Albanese government’s latest proposal, the immigration minister would be able to apply to state supreme courts for a community safety order for the detention or supervision of adults released as a result of the NZYQ decision.
If a community safety detention order was ordered, the non-citizen could be detained for up to three years in prison – not immigration detention. Successive orders could be made so the total period of detention could exceed three years.
Who does this apply to?
Under the proposed regime, an application could be made about a person who had been convicted of a serious violent or sexual offence punishable by seven or more years in prison.
Such offences involve the loss of life or the risk of loss of life, personal injury, sexual assault, and production of child sexual abuse material. Foreign convictions count.
The government would not quantify how many of the 148 released detainees could be covered but insisted a majority had been convicted of such offences.
The amendments would apply to all adult non-citizens convicted of serious violent or sexual offences who can’t be deported – both those released due to NZYQ and those who would have been taken into immigration detention but can’t be because of the ruling.
What is the threshold for an order?
The court must be “satisfied to a high degree of probability … that the offender poses an unacceptable risk of seriously harming the community by committing a serious violent or sexual offence”.
The court must be persuaded that no less restrictive measure would be effective.
If the court did not believe that a community safety detention order was warranted, it could order a community safety supervision order instead. Conditions ordered by the court then supersede any conditions on the person’s bridging visa.
What is an order?
A community safety detention order would send a non-citizen to prison.
A supervision order would see them return to the community but be subject to a range of conditions: residing at a specified premises; curfews; not leaving the state; not changing name; not applying for a licence; not communicating with certain individuals; not accessing a type of technology; not using specified articles or substances; limiting their work or other activities; and providing information to authorities.
Courts could also order any form of rehabilitation or counselling, which the commonwealth would pay for.
What safeguards are there?
The minister must persuade the court based on admissible evidence only – which is a higher standard than is used for character concerns on visa cancellations.
The minister must present facts including those that might result in the court concluding it should not grant the order sought by the minister.
The non-citizen would have their legal counsel present, paid for by the commonwealth if necessary.
Community safety orders must be reviewed once every year by the court. There is also a right to appeal against orders. The minister must report to parliament every year on the regime.
Is this legal?
The government refuses to release or speak about advice from the solicitor-general about the level of constitutional risk involved in the proposal.
However, the high-risk terrorism offenders regime on which it is based was upheld by the high court in 2021.
In its reasons on the NZYQ case, the high court observed that releasing the plaintiff would not “prevent [his] detention … on some other applicable statutory basis, such as under a law providing for preventive detention of a child sex offender who presents an unacceptable risk of reoffending if released from custody”.
This was interpreted as an indication that a preventive detention regime might be possible for serious offenders in the NZYQ cohort.
