高清福利片

After a week of non-stop headlines, the government鈥檚 preventative detention legislation聽聽the lower house, just in time for the end of the sitting year.

The new laws will allow former immigration detainees to be re-detained if they are judged to pose a high risk of committing serious violent or sexual crime.

The legislation comes after a 20-year legal precedent was overturned in November, when the聽聽the government could not detain people indefinitely 鈥� regardless of whether they had a criminal history.

The High Court鈥檚 decision was celebrated by聽聽and some聽. It was seen as a rare opportunity to reshape Australia鈥檚 immigration detention policies in line with international law, the constitutional separation of powers, and principles of procedural justice and proportionality.

Yet the opportunity for much-needed reform has been frustrated by political point-scoring. The opposition and tabloid media have stirred up moral panic about the release of 鈥溾��. Anxious to avoid accusations of being 鈥渟oft鈥�, the government has adopted the same discourse.

Both the government and opposition agree it is necessary to put 鈥渄angerous鈥� people back behind bars to protect the community. In a clear break from parliamentary process, the vote on the legislation was scheduled for a聽, giving parliamentarians little opportunity to scrutinise or debate the legislation.

So what do these laws actually do, what do they mean for those most affected by them, and what is being lost in the current debate?

The new laws will allow the immigration minister (currently Andrew Giles) to apply to a court to re-detain people who have been released from immigration detention.

For an application to be successful,听.

First, the person must have been convicted of a crime (either in Australia or overseas) that carries a sentence of at least seven years鈥� imprisonment.

Second, the court must agree the individual poses 鈥渁n unacceptable risk of committing a serious violent or sexual offence鈥�, and that there is 鈥渘o less restrictive measure available鈥� to keep the community safe.

The involvement of the courts in making these decisions is a welcome safeguard in the context of a detention system in which people are routinely incarcerated for years or even decades without court oversight. The minister鈥檚 previous 鈥溾�� in this area have been widely criticised.

Yet the human rights implications of detaining people who have already served their time are聽. Re-detention is likely to be experienced as a secondary punishment, which is contrary to principles of proportionality and procedural fairness.

It is also notable that these laws only apply to people who are not Australian citizens.

Australians with the same criminal histories and risk profiles will not be subject to preventative detention under this legislation. This raises concerns about the laws鈥� validity, with some suggesting the targeted nature of the legislation may leave it vulnerable to a聽.

On November 8, the High Court of Australia聽聽that if there is no real prospect of a person being deported in the forseeable future, it is unlawful for the government to detain them indefinitely.

The case was brought by a Rohingya man, known as NZYQ, who was no longer eligible for an Australian visa after being convicted of a sexual crime. As he鈥檚 a member of a聽, he could not be deported back to Myanmar.

With no visa and聽聽willing to accept him, he had been moved into indefinite immigration detention after completing his prison sentence in 2018.

The court鈥檚 decision triggered the release of more than聽,听聽have since been arrested for various alleged crimes.

People with no criminal history 鈥� including a man who had spent聽聽in detention after coming to Australia in search of asylum 鈥� were also among those released.

The government has already imposed聽聽on the freed individuals, including ankle bracelets and curfews.

Prior to the High Court鈥檚 decision, refugees, people seeking asylum, stateless people and other non-citizens without a valid visa were regularly subject to indefinite mandatory detention.聽, Australia held 1,056 people in immigration detention; the average duration of detention was 708 days.

Unlike prisons, immigration detention centres are officially administrative and not for punishment. That is, people are not held in these facilities as part of a criminal sentence, but to facilitate health, security and identity checks, and to enable visa processing or removal from the country.

In the almost 30 years since Australia introduced indefinite mandatory detention, tens of thousands of people have been subject to this policy. Among those detained have been聽, whose detention continues to be permitted under Australian law.

聽are often punitive, and have been subject to regular聽.

The current debate about immigration detention glosses over these realities. It obscures the profound humanitarian implications of the High Court鈥檚 ruling.

It also ignores the urgent need for further reform to ensure innocent people (including children) are not unduly punished. And it rationalises ongoing incarceration - beyond the terms of a criminal sentence - as a valid response to non-citizens who have already served their time.

Update:听The legislation passed the House of Representatives late on Wednesday night.

This article was orignally published in . It was written by Dr Michelle Peterie, a University of Sydney Robinson Fellow in the School of Social and Political Sciences at The University of Sydney, and聽Dr Amy Nethery from Deakin University.聽