Hasty detainee laws raise human rights concerns 

Lorraine Finlay, Human Rights Commissioner   

As we approach international Human Rights Day on 10 December – which this year marks the 75th anniversary of the Declaration of Human Rights – the ongoing fallout from the NZYQ High Court decision continues to highlight both the importance and complexity of promoting and protecting human rights.  

The passing of the Migration Amendment (Bridging Visa Conditions and Other Measures) Bill 2023 last night is designed to respond to the High Court decision in NZYQ v Minister for Immigration, but ultimately raises more questions than it answers. 

There was clearly a need to act with urgency following the High Court decision given the surrounding circumstances and the importance of protecting the Australian community. This urgency has been reinforced by media reports confirming there are now four individuals among the cohort released from immigration detention who have been arrested and are alleged to have reoffended since their release.  The safety of the Australian community must be the first priority.  

It is also important, however, not to lose sight of the broader human rights considerations.  The Australian Human Rights Commission has, over many years, consistently expressed serious concerns about the use of indefinite immigration detention in Australia because of the way that it arbitrarily and profoundly undermines key human rights. In responding to the NZYQ decision, it is essential to ensure community safety is not compromised, but also any policy measures adopted are measured, proportionate, and anchored firmly in respect for the human rights of all concerned.    

The reactive and rushed responses we have seen across the past few weeks are far from ideal.   

Policies concerning immigration and asylum seekers need to be deliberately and carefully calibrated. There are a range of substantial factors which need to be considered together. These include the right of Australia as a sovereign nation to control its own borders, upholding the integrity of Australia’s immigration system, the right of asylum seekers to seek safety and protection (ensuring that their individual human rights are protected throughout that process), the right of Australians to be safe in their homes and communities, and the need to take strong measures against people smuggling and human trafficking.    

This is why the new laws that have been passed so quickly by the Parliament require detailed consideration. They should now be referred to a parliamentary committee with the remit to fully scrutinise both the laws and their implementation.  

The introduction of a Community Safety Order scheme to protect the community from the risk of individuals who have committed serious violent or sexual offences is mirrored on preventative detention laws already in place with respect to high-risk terrorist offenders.  

However, these existing laws themselves raise human rights concerns. For example, the existing laws were introduced without any method being in place to reliably assess the future risk of terrorism offending. As has recently been revealed, the key risk assessment tool relied on by the Government in the two cases where continuing detention orders were sought under these laws has been found to have ‘questionable predictive validity’.   

With respect to the new Community Safety Order scheme the Government has stated that it has not yet identified which risk assessment tool will be used. This is not a policy area where the mechanics of implementation should be worked out after the fact. 

There are substantial human rights questions that necessarily arise with respect to any law that proposes to introduce preventative detention. An order for preventative detention must only be made within the framework of a substantive judicial process. Crucially, any proposal for preventative detention must also demonstrate a robust, validated method of assessing future risk.   

We also know that preventative detention is not, in itself, a complete response to the NZYQ decision. Just two individuals have been detained under the preventative detention scheme that applies to high-risk terrorist offenders since its introduction. While it is not clear exactly how many of the individuals released following NZYQ will come within the scope of the new community safety detention orders, it is highly unlikely that they will be applied to all, or even most, of the more than 140 individuals who have so far been released.  

This means  the application, monitoring and enforcement of visa conditions remains a critical part of the response, and yet we know that a number of legal challenges to these parts of the new laws have already been confirmed. 

The Statement of Compatibility with Human Rights that was published together with the new laws highlights a number of risks of incompatibility with human rights, and assesses the amendments as being ‘partially compatible with Australia’s human rights obligations’.  Questions of proportionality are essential to these laws and require careful and detailed consideration.  This is another reason the laws should be carefully scrutinised by a parliamentary committee. 

The risk is the new laws do not strike the right balance, and do not provide a sustainable long-term solution in what is a complex policy area. This could potentially result in unintended consequences or a period of uncertainty as laws are drafted, amended and challenged in quick succession, and where implementation is hampered by confusion.   

By acting in haste, there is a real risk we could end up creating larger and more complex problems in the long run, not just for our immigration system more broadly but also for our commitments to and application of justice and human rights for all people in Australia. 

The Australian Human Rights Commission will honour 21 human rights heroes at this year's Australian Human Rights Awards in Sydney tomorrow. The Awards will be a key part of Australia's commemorations for the 75th anniversary of the Declaration of Human Rights: 

The Commission has also produced a 5-part video series which commemorates the Declaration from an Australian perspective: 

ENDS | Media contact: media@humanrights.gov.au or +61 457 281 897