The Labor government’s hastily written new migration law could be vulnerable to High Court challenges, legal experts believe.
Specifically, a question could arise whether imposing a curfew and monitoring ex-detainees would count as punishment, and whether that would run afoul of the constitution’s third chapter, which makes clear punitive measures are the jurisdiction of the courts.
Home Affairs Minister Clare O’Neil said on Sunday the government expected to continue to tinker with immigration detention laws, telling Sky News: “This is not over.”
“[The recent High Court] decision is so significant it does need the Commonwealth to rethink the management of immigration detention and we will work through that,” she said.
“We will be in a better position to do that when the High Court releases the reasons for its decision and it will do that early next year.”
Crikey spoke to several legal experts, who did not wish to be quoted by name, who said the new amendment to the Migration Act could be vulnerable to challenges.
The question of whether the curfews and monitoring would be considered punishment would depend on whether or not they’re carried out to protect the community from risk. Unless that’s determined on a case-by-case basis, the government may struggle to argue it’s not a punishment.
The Law Council of Australia has called for the amendment to come before an urgent parliamentary review.
“We have strong concerns about the rushed passage of an act that imposes harsh offence provisions subject to mandatory sentences and draconian limitations on liberty that are disproportionate to the risks it seeks to address,” Law Council of Australia president Luke Murphy said in a statement on Friday.
Asylum Seeker Resource Centre principal solicitor Hannah Dickinson said the new law was “extraordinary” and the conditions “Orwellian”.
“The way the conditions operate is that they will be in place essentially for life,” she told Crikey.
“It’s entirely possible they could be subject to a High Court challenges — frankly, the conditions are so restrictive that they may well be unlawful and that remains to be seen.”
The High Court’s full judgment may not be available before next year. O’Neil said the court’s reasons may shed light on whether more people could be released from immigration detention.
As well as the possibility that the various measures imposed by the new legislation are punitive and so unconstitutional, there should be more questions asked about whether any mandatory sentencing is ever constitutional. The courts are supposed to have jurisdiction over [crimmynal] matters brought to trial, deciding who to convict and, where there is a conviction, imposing the appropriate punishment according to the law. When there is a mandatory sentence it is in effect not imposed by the court, but follows automatically on conviction, regardless of of the court and any circumstances the court might think relevant in deciding the sentence. This is fundamentally wrong. Funnily enough, Labor knows this and claims to be opposed to be mandatory sentences in general. But of course political convenience or panic trumps principles every time, as we see with this disgraceful legislation and so much more.
[crimmynal] is a substitute for a word that upsets the ModBot
Yes, dreadfully disappointing. If these people have “served their time” then they are no different to the thousands of “Australian” people who have served their time. If they re-offend, then prosecute them.
But unfortunately racism continues to thrive, as the Voice referendum showed. Why focus on the “crime” when there are far more innocent ex-asylum seekers who should never have been locked up?
Sadly, we currently live in a time when the crimes of the few are a reason to punish the many. There’s a certain situation overseas… (the Crikey modbot begins whirring) …where this is being applied brutally and… (modbot begins growling) …extensively, and I’d better not say anymore.
Labor needs to break the circuit of allowing the LNP to lock them into an auction of cruelty. Because the LNP have natural advantages on that terrain, and it makes people who might otherwise support Labor feel sick. If there is a choice between pandering to tabloid outrage and upholding the rule of law, stick to the rule of law.
The ALP shows a distressing tendency to suck up to the Coalition wherever possible. All locking in is done on their side, like the Stage 4 tax cuts.
Stage 3 …
Give it time…
Why are Labor such wimps? There’s no need to cave in to Dutton’s bullying – they’re the government now!
I always remember the words of a shearer who was elected to the Queensland parliament in 1898.His name was Tommy Ryan and he had participated in the Great Shearers Strike of 1891.He didn’t stay in parliament long and resigned his seat stating thr reasons for doing so.The whiskey is too strong,the seats are too soft and the friendships are too warm.I am going back to the Barcoo. where I can be a man again.
In my view, the ALP isn’t a progressive political party at all. They embrace progressive nature when there is a vote to be gained, only to turn their backs on minority groups as soon as they’re no longer a vote winning for them. Just look at the ALP quietly working on a religious freedom bill that would permit people to discriminate against any group of people not seen as “fit” nor “moral” under the identity of religious beliefs.
Senator Wong has lost all of my respect for her. To put party line ahead of her own community who will face persecution is evidence for me that party politics is beyond repair.
During the final ALP conference of the Rudd/Gillard/Rudd interregnum Sen. Wong (an unrepentant factional warrior) argued AGAINST allowing ‘Labor’ a conscience vote on SSM knowing full well what the Abbotrocity planned for after the looming electoral defeat.
Factional battles trump ethics every time – the SussexSt Right prefers the party to stay in Opposition rather than lose control.
During the final ALP conference of the Rudd/Gillard/Rudd interregnum Sen. Wong (an unrepentant factional warrior) argued AGAINST allowing ‘Labor’ a conscience vote on SSM knowing full well what the Abbotrocity planned for after the looming electoral defeat.
Factional battles trump ethics every time – the Right prefers that the party to stay in Opposition rather than lose control of its petty little fiefdom.
Another madBot triumph – it cannot cope with the street name where the party’s Black Lubyanka has been located for decades.
I thought that when people have served their sentences, they should be released
That’s only under the Law – not the Mudorc’s media manipulators.