Australia risks creeping towards an Alice in Wonderland legal system in which its citizens begin to believe the courts are for jailing people to prevent crimes, not to punish them, according to the former security watchdog who reviewed the law on which a new preventive detention regime for non-citizen violent offenders has been based.
In a blistering assessment of the detention legislation that was pushed through federal parliament this week, former independent national security legislation monitor (INSLM) Grant Donaldson, SC, told The Saturday Paper it represented an alarming expansion of existing arrangements and could prove unworkable for the courts and possibly be unlawful. Donaldson, who ended his term as INSLM two weeks ago replaced by Jake Blight, also warned it normalised a practice in Australia’s legal system that is seen as “shocking” in other parts of the world.
“We want to be very careful in this country, putting people in jail on the basis of a prediction about future conduct…” Donaldson said. “When you look at the creep that is occurring with this preventive detention stuff, we want to be very careful.”
He warned the normalisation of such arrangements is dangerous.
“We could conceivably get to a position where the community perception of courts is that … the most important thing that courts do is keep people in prison to prevent crime occurring,” Donaldson said. “If that becomes the perception in the community of what courts do, then I think we’ve got a very serious problem.”
He argued judges were “no better at predicting what’s going to happen in the future than anybody else”.
“So the real problem with these sorts of schemes is you can never prove that a wrong decision’s been made if you keep somebody locked up. Because if you keep somebody locked up, well, they’re not going to offend. They may well have not offended had they been out in the community, but you’d never know.”
Late on Wednesday night, parliament passed a series of amendments to the Migration Act and other existing laws that will allow the immigration minister to apply to a court to re-detain certain former immigration detainees who have committed past serious violent or sexual crimes and who cannot be deported.
The past crimes – for which they have already served their sentences – must have been punishable by at least seven years’ jail and the court must find they have a serious risk of reoffending and that there is no alternative option that could prevent it. The court must hear expert evidence and consider a long list of criteria before determining if the circumstances warrant the person being locked up. These new forms of detention are referred to as “community safety orders”.
Those who could fall under the new regime are among at least 148 people released from immigration detention following a High Court ruling on November 8 that found indefinite detention amounted to “punishment”, and because it was being imposed by ministerial direction, and not by a court, it was unlawful.
The government rushed initial legislation into parliament three weeks ago to subject those being released to monitoring, including via electronic ankle bracelets, along with restrictions on movements and reporting conditions.
However, because the court had not revealed the points of law on which its decision was based, the government had to wait until it published its reasons on November 28, before determining what, if any, further legislation was required.
Those reasons suggested that creating a special preventive detention regime might be an option and the government rushed that legislation into parliament this week, alongside other amendments to further toughen the conditions already placed on those released.
The new regime for non-citizen violent criminals is based on an existing one that covers high-risk terrorism offenders, known as the HRTO regime. HRTO was, in turn, based on sex-offender regimes in place at state and territory level, some for almost 20 years, which provide for continuing detention of convicted sex offenders, even after they have served their sentences.
In a report published on March 3, Donaldson, who was still INSLM at the time, reviewed the HRTO regime and also examined the state-based sex-offender regimes that had informed its design.
He was so concerned about the normalisation of these pre-emptive regimes that he began his report by quoting Lewis Carroll’s 1871 children’s fantasy novel Through the Looking Glass. “In gentler times, the types of laws discussed in this report were the subject of parody…” Donaldson wrote. “But, whatever history truly tells us, and whatever international practice may teach us, orders of this kind are extraordinary.”
Speaking to The Saturday Paper, Donaldson said the complex set of conditions of which judges must be satisfied to issue re-detention orders under the new regime, and the vague, undefined terms in the legislation passed this week, meant it would be very difficult for judges to make determinations.
He warned there were few of the expert psychologists and psychiatrists who would be required to assess the people about whom the applications were made and they would be forced to base their analyses sometimes on very old former convictions.
Donaldson said most former detainees had not been provided ongoing rehabilitation and reintegration counselling because successive governments believed they would never have to release them into the community.
“It’s going to be very difficult for courts to be able to be satisfied that these orders should be made,” he said.
Donaldson believes the regime creates another practical problem for the courts. In applying for a detention order, the government must present expert evidence from someone who has assessed the person and supports the argument that only detention, and nothing less, is appropriate.
However, if a judge wants to consider the lesser alternative – supervision in the community – that expert cannot give arguments in favour of that, having just effectively argued against it.
Without a second expert equally qualified to speak about the same person’s history and circumstances, the judge could not be properly informed.
“You’re going to have to go and get another expert who’s going to provide advice as to the appropriate terms of a supervision order,” Donaldson says.
That would take a long time – probably many months. “I would be staggered if any of these people will be in detention before January.”
It is unclear how many of those released following the High Court decision will fall within the act’s purview. The government will not say, only declaring it is preparing its arguments.
“We’ve already begun working through the worst offenders to make sure that we can do everything we can to keep the community safe,” Immigration Minister Andrew Giles said on Wednesday. “Ensuring, of course, that we are putting in place effective applications to the court, which involves, as I’m sure you would appreciate, working very closely with the states.”
Donaldson notes there is no provision in the new regime for interim detention orders while those processes ensue, unlike under the state and territory equivalents. Those schemes apply to people still serving sentences for sexual offences in all states, and the Northern Territory, and in some cases also other violent offences. In Western Australia, which Donaldson says has an “appalling” law, it can also apply to people convicted of aggravated burglary or lighting fires.
The new national regime is for people currently out of detention, and whom the High Court has ruled cannot be detained without this court process because they are not facing criminal charges.
The absence of provision for the rehabilitation or reintegration of would-be detainees could create problems for its legality. They are among key requirements for upholding Australia’s obligations under the International Covenant on Civil and Political Rights.
“If there’s no object under the act for this person to be rehabilitated and reintegrated into the community because they never will be, well, they’ll never get out,” Donaldson says. “They’ll be there forever.”
That could be seen, therefore, as another form of indefinite detention and simply having it ordered by the court may not be enough to make it lawful.
“There is a real issue,” Donaldson said, “as to whether the courts have got power to do that.”
Although it ultimately backed the legislation, the opposition continued its political attack on the government for being unprepared for the High Court decision, claiming it produced a ham-fisted response and accused Prime Minister Anthony Albanese of failing the first test of office: to keep Australians safe.
It ramped up the pressure through the final sitting week of parliament as a series of reports emerged of former detainees being arrested and charged with new offences allegedly committed since their release. The alleged offences included cannabis possession, theft of a sleeping passenger’s luggage at Melbourne Airport, contacting children inappropriately and a serious and violent sexual assault.
On Thursday, Opposition Leader Peter Dutton accused the government of allowing “rapists, murderers and paedophiles” into the Australian community, asking: “Will the prime minister apologise to the Australian people?”
Albanese responded that community safety was the government’s priority and he was pleased the Coalition had backed “stronger laws to keep people safe”.
“Certainly, I am sorry anytime someone is the victim of a crime, wherever it is committed at any time against any victim,” Albanese said.
At a heated news conference the previous day, Home Affairs Minister Clare O’Neil said she would not apologise for “wanting to re-detain people who are an unmanageable risk to the community” and Attorney-General Mark Dreyfus criticised a journalist for demanding he apologise to the alleged victim of one of the former detainees accused of violently assaulting her upon his release – something he could not do without prejudicing legal proceedings.
“I will not be apologising for upholding the law,” Dreyfus responded. “I will not be apologising for pursuing the rule of law and I will not be apologising for acting in accordance with a High Court decision.”
He chastised the journalist for interrupting and told her the question was “an absurd one”.
In an interview on Sky News, deputy Liberal leader Sussan Ley ignored the legal issues and also demanded he apologise. “How many of these predators, these criminals, will be locked up before Christmas?”
Grant Donaldson accuses both government and opposition of deliberately using extreme language.
“It’s just become a race to the bottom on law and order matters and it is just endemic in Australian politics at both state and federal levels, endemic,” Donaldson says. “ ‘We’re going to be tougher on this, we’re going to introduce the toughest sort of laws’, ‘These laws aren’t tough enough’ – it’s just pathetic. It’s pathetic. And the difficulty with laws like this is, once they’re enacted, it’s extremely difficult to peel them back.”
Donaldson says it “sickens” him that both major parties have created the impression everybody in the affected group of former detainees “is some sort of dangerous, rampaging sexual offender”. Although all have been deemed of bad character and had their visas revoked, he says, the range of reasons is broad and some have not been convicted of any offence, or of low-range offences with non-custodial penalties, and some many years ago.
Donaldson cites the example of a Hazara Afghan refugee who is challenging the new post-release visa restrictions in the High Court. The man, who committed a minor assault while in immigration detention 12 years ago, was fined $2000 with no custodial sentence and has not offended since. He was released into community detention earlier this year.
Following the High Court decision, he was included in the cohort who had been convicted and could no longer be detained – including in that manner – so he is now subject to strict conditions, including wearing an electronic monitoring ankle bracelet. His lawyers are challenging this, arguing it is a new form of “punishment” the government did not believe was required previously.
“That bloke, whoever he is – he has been vilified deliberately because everybody thinks everybody within this cohort is a bloody Attila the Hun, you know, coming across the steppe,” Donaldson says.
In his March report, Donaldson recommended that continuing detention orders – the power to re-detain people who have served jail terms for terrorism offences – be abolished or at the very least a clearer clause be inserted into law giving better guidance to judges on the test that should be met for such an order to be made.
Donaldson says that during hearings for his review, officials from the Attorney-General’s Department agreed it would be a simpler, more straightforward approach.
It has not been adopted, either in the HRTO law or in the new migration detention regime.
Instead, the new regime says judges must determine there is a high probability, based on admissible evidence that is all available to the person subject to the application, they will commit a serious violent or sexual offence.
The law does not list specific offences. Instead, it describes conditions including that it causes “serious personal injury or serious risk of serious personal injury”, concepts Donaldson says are not contained in criminal law.
The government is awaiting another review, by the parliamentary joint committee on intelligence and security, before it responds to Donaldson’s report. In a departure from normal practice with security legislation, the PJCIS was not given a referral to examine the hurried preventive detention legislation before parliament passed it and has not received one since.
Introduced in 2016, the HRTO regime has only been used twice to keep people incarcerated beyond the end of their sentences – and only one person, convicted terrorist Abdul Nacer Benbrika, remains in custody under what is known as a continuing detention order.
In contrast, Grant Donaldson says, there are many people currently in jail on state-based ongoing detention orders. He does not know how many in total but some have been there “for years and years”, something he says concerns him “enormously”.
Benbrika’s detention order is due to expire on December 23 and the Commonwealth has applied to replace it with an extended supervision order, which would see him released but subject to monitoring and strict conditions on his movements. The Victorian Supreme Court is due to rule on that application within weeks.
Donaldson warns that, collectively, these regimes breach Australia’s obligations under international law, which requires not only the availability of rehabilitation and reintegration programs but also that people subject to preventive or continuing detention orders be accommodated separately from prisoners who are serving jail terms for criminal convictions.
Both the HRTO law and the new preventive detention legislation include clauses requiring separate accommodation. Yet Victoria, where Benbrika is based, is the only jurisdiction that has separate special-purpose facilities.
Donaldson fears that people affected by the laws will end up in jails. This week, The Saturday Paper was told the government was working with the states and territories on where to place people, “as appropriate”.
Donaldson says the government’s assurances have not alleviated the concern he expressed when he quoted Lewis Carroll in his March report.
In the Through the Looking Glass excerpt he cited, the Queen character tells Alice what she remembers best are “things that happened the week after next”, citing the circumstance of the King’s messenger. “He’s in prison now, being punished: and the trial doesn’t even begin till next Wednesday,” the Queen explains, “and of course, the crime comes last of all.”
“Suppose he never commits the crime?” Alice asks.
The Queen is quick to respond. “That would be all the better, wouldn’t it?”
This article was first published in the print edition of The Saturday Paper on December 9, 2023 as "‘It’s pathetic’: outgoing security watchdog slams detention laws".
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