tag:theconversation.com,2011:/ca/topics/indefinite-detention-5627/articlesIndefinite detention – The Conversation2024-03-20T04:45:08Ztag:theconversation.com,2011:article/2261202024-03-20T04:45:08Z2024-03-20T04:45:08ZThe government is fighting a new High Court case on immigration detainees. What’s it about and what’s at stake?<p>The government will be on tenterhooks again next month when the High Court of Australia hears another case that could lead to the release of a further cohort of people currently in immigration detention. </p>
<p>Given the ongoing political fallout of the <a href="https://theconversation.com/high-court-reasons-on-immigration-ruling-pave-way-for-further-legislation-218699">previous controversial</a> High Court case, the outcome of this one will be closely watched.</p>
<p>So why is this new case so significant, and how does it differ from the last one?</p>
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Read more:
<a href="https://theconversation.com/what-is-the-governments-preventative-detention-bill-heres-how-the-laws-will-work-and-what-they-mean-for-australias-detention-system-219226">What is the government's preventative detention bill? Here's how the laws will work and what they mean for Australia's detention system</a>
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<h2>What is the case about?</h2>
<p>The case is called <em>ASF17 v Commonwealth</em>. It concerns an <a href="https://www.hcourt.gov.au/assets/cases/07-Perth/p7-2024/ASF17-Cth-App.pdf">Iranian citizen</a> who has been held in immigration detention for ten years. He failed in his application for a protection visa and is therefore subject to an obligation that he be deported as soon as reasonably practicable. </p>
<p>However, he has hindered his deportation (or “frustrated” it, in legal terms) by refusing to meet with Iranian officials to secure the travel documents needed for his return to Iran. </p>
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<p>He says he has good reason not to want to be returned to Iran because he is bisexual, has converted to Christianity, is Kurdish and has opposed the mistreatment of women by the Iranian government. </p>
<p>He says he fears for his life if he is removed to Iran, but he is prepared to cooperate in his removal to any country other than Iran.</p>
<p>The Commonwealth has accepted there is no prospect of his removal to any country other than Iran. It has also accepted that he cannot be removed to Iran without his cooperation, as Iran does not accept involuntary removals. </p>
<p>So does this mean he’ll be released in accordance with the High Court’s <a href="https://theconversation.com/new-laws-to-deal-with-immigration-detainees-were-rushed-leading-to-legal-risks-219384">previous <em>NZYQ</em> case</a>? </p>
<h2>How is this different from the previous case?</h2>
<p>You might remember the <em>NZYQ</em> case from late last year. In it, the court found a stateless Rohingya refugee, who couldn’t secure a visa because of previous criminal convictions, <a href="https://www.abc.net.au/news/2023-11-10/asylum-seekers-indefinite-detention-to-be-released/103088762">couldn’t be held</a> in indefinite detention. This was because there was “no real prospect of his removal from Australia becoming practicable in the reasonably foreseeable future”. </p>
<p>The decision overturned a 2004 precedent and triggered the release of at least <a href="https://www.abc.net.au/news/2024-02-12/half-released-immigration-detainees-convicted-violent-offending/103455458">149 other detainees</a> in similar situations.</p>
<p>The Commonwealth has argued ASF17’s case falls into a different category, because whether there is a practical prospect of removal must be assessed on the basis that the detainee is cooperating. </p>
<p>When the case was first heard in the Federal Court, the Commonwealth argued that when assessing whether there is a practical prospect of deporting a detainee, delays caused by the detainee not cooperating shouldn’t be taken into account. This is regardless of whatever may be the reasons for his or her non-cooperation. </p>
<p>Justice Colvin, in the Federal Court, <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/2024/7.html">accepted</a> the Commonwealth’s argument. He pointed out that the reasons for refusal to cooperate, including fear of persecution on return to Iran, were matters separately dealt with during his application for a protection visa. </p>
<p>Once the detainee had reached the end of his appeals on this point, he was being held solely for the purpose of removal from Australia, so the reasons for his concerns could not be revisited. </p>
<p>Justice Colvin concluded that the assessment of whether there was a real prospect of his removal becoming practicable in the reasonably foreseeable future then had to be made on the basis of the detainee’s cooperation in taking relevant steps towards deportation. This was the case even if the detainee refused to act. </p>
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Read more:
<a href="https://theconversation.com/new-laws-to-deal-with-immigration-detainees-were-rushed-leading-to-legal-risks-219384">New laws to deal with immigration detainees were rushed, leading to legal risks</a>
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<h2>The appeal to the High Court</h2>
<p>ASF17 then appealed to the Full Federal Court, and the Commonwealth government successfully sought the removal of this case directly into the High Court. This is because the lower courts have not been acting consistently on this point. </p>
<p>For example, in <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/2023/1497.html"><em>AZC20 v Secretary, Department of Home Affairs (No 2)</em></a>, an Iranian detainee who had never been convicted of a crime and had been held in detention for ten years was ordered to be released, despite the fact he was refusing to cooperate with his removal to Iran (although he was prepared to cooperate with his removal to any other country). The Commonwealth therefore wants the High Court to resolve the uncertainty and give a clear decision.</p>
<p>Previously, in its <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2023/37.html"><em>NZYQ</em> judgment</a>, the High Court distinguished that case from cases in which the detainee seeks to frustrate attempts to deport them. </p>
<p>This justifies the Commonwealth’s approach of treating detainees who have frustrated their deportation as being in a different category. It still, however, leaves it open to the High Court to decide whether they should be released or remain in detention. </p>
<p>In the <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2019/17.html">past</a>, the High Court has not been sympathetic to those who have sought to thwart their deportation by telling falsehoods about their identity, noting that the courts are disinclined to allow a party to take advantage of his or her own wrongful conduct. </p>
<p>But whether honest non-cooperation, as opposed to falsehoods, would be treated the same way remains to be seen.</p>
<h2>How many detainees will be affected?</h2>
<p>The decision in this case is likely to affect a wider cohort of people in immigration detention who cannot be deported because they have refused to cooperate. <a href="https://www.smh.com.au/politics/federal/the-unwanted-high-court-to-determine-the-fate-of-another-127-in-limbo-20240318-p5fdah.html">Some countries</a>, such as Iran, do not accept the involuntary return of their citizens, which means detainees can prevent their deportation to these countries by refusing to cooperate. </p>
<p>According to <a href="https://www.theguardian.com/australia-news/2024/mar/20/australia-asf17-immigration-detainees-high-court-challenge-more-than-170-could-be-freed">The Guardian</a>, a leaked government document estimated that about 170 people currently in detention could be affected, although the minister has refused to discuss numbers or the details of the case while it is before the courts.</p>
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Read more:
<a href="https://theconversation.com/high-court-reasons-on-immigration-ruling-pave-way-for-further-legislation-218699">High Court reasons on immigration ruling pave way for further legislation</a>
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<p>If the High Court were to decide that a person could prevent their deportation by refusing to cooperate and could use this to cause their release into the community, it would give detainees a great incentive to refuse cooperation in deportation matters. </p>
<p>The Commonwealth has strong arguments on its side, but as always it is a matter for the High Court ultimately to decide.</p><img src="https://counter.theconversation.com/content/226120/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Anne Twomey has received grants from the ARC and occasionally does consultancy work for governments, Parliaments and inter-governmental bodies. She is also a consultant with Gilbert + Tobin Lawyers, which does pro bono work for refugee claimants.</span></em></p>The government will head back to the High Court next month for another immigration case. If it loses, there could be wide-ranging consequences.Anne Twomey, Professor emerita, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2214112024-01-19T00:37:04Z2024-01-19T00:37:04ZIsrael now ranks among the world’s leading jailers of journalists. We don’t know why they’re behind bars<p>Israel has emerged as one of the world’s leading jailers of journalists, according to a <a href="https://cpj.org/reports/2024/01/2023-prison-census-jailed-journalist-numbers-near-record-high-israel-imprisonments-spike/">newly released census</a> compiled by the New York-based Committee to Protect Journalists.</p>
<p>Each year, the committee releases a snapshot of the number of journalists behind bars as of December 1 2023 was the second highest on record with 320 in detention around the world. </p>
<p>In a small way, that is encouraging news. The figure is down from a high of 363 the previous year.</p>
<p>But a troublingly large number remain locked up, undermining press freedom and often, human rights.</p>
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Read more:
<a href="https://theconversation.com/more-than-one-journalist-per-day-is-dying-in-the-israel-gaza-conflict-this-has-to-stop-217272">More than one journalist per day is dying in the Israel-Gaza conflict. This has to stop</a>
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<h2>China takes out unenviable top spot</h2>
<p>At the top of the list sits China with 44 in detention, followed by Myanmar (43), Belarus (28), Russia (22), and Vietnam (19). Israel and Iran share sixth place with 17 each. </p>
<p>While the dip in numbers is positive, the statistics expose a few troubling trends. </p>
<p>As well as a straight count, the Committee to Protect Journalists examines the charges the journalists are facing. The advocacy group found that globally, almost two-thirds are behind bars on what they broadly describe as “anti-state charges” – things such as espionage, terrorism, false news and so on. </p>
<p>In other words, governments have come to regard journalism as some sort of existential threat that has to be dealt with using national security legislation. </p>
<p>In some cases, that may be justified. It is impossible to independently assess the legitimacy of each case, but it does point to the way governments increasingly regard information and the media as a part of the battlefield. That places journalists in the dangerous position of sometimes being unwitting combatants in often brutally violent struggles.</p>
<p>China’s top spot is hardly surprising. It has been there – or close to it – for some years. Censorship makes it extremely difficult to make an accurate assessment of the numbers behind bars, but since the crackdown on pro-democracy activists in 2021, journalists from Hong Kong have, for the first time, found themselves locked up. And almost half of China’s total are Uyghurs from Xinjiang, where Beijing has been accused of <a href="https://www.ohchr.org/sites/default/files/documents/countries/2022-08-31/22-08-31-final-assesment.pdf">human rights abuses</a> in its ongoing repression of the region’s mostly Muslim ethnic minorities.</p>
<p>The rest of the top four are also familiar, but the two biggest movements are unexpected. </p>
<p>Iran had been the <a href="https://cpj.org/reports/2022/12/number-of-jailed-journalists-spikes-to-new-global-record/#:%7E:text=The%20Committee%20to%20Protect%20Journalists,in%20a%20deteriorating%20media%20landscape.">2022 gold medallist</a> with 62 journalists imprisoned. In the latest census, it dropped to sixth place with just 17. And Israel, which previously had only one behind bars, has climbed to share that place. </p>
<p>That is positive news for Iranian journalists, but awkward for Israel, which repeatedly argues it is the only democracy in the Middle East and the only one that <a href="https://www.jpost.com/opinion/article-709045#google_vignette">respects media freedom</a>. It also routinely points to Iran for its long-running assault on critics of the regime. </p>
<p>The journalists Israel had detained were all from the occupied West Bank, all Palestinian, and all arrested after Hamas’s horrific attacks from Gaza on October 7. But we know very little about why they were detained. The journalists’ relatives told the committee that most are under what Israel describes as “administrative detention”. </p>
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<a href="https://theconversation.com/gaza-war-israeli-government-has-haaretz-newspaper-in-its-sights-as-it-tightens-screws-on-media-freedom-218730">Gaza war: Israeli government has Haaretz newspaper in its sights as it tightens screws on media freedom</a>
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<h2>17 arrests in Israel in less than 2 months</h2>
<p>The benign term “administrative detention” in fact means the journalists have been incarcerated <a href="https://www.btselem.org/topic/administrative_detention">indefinitely, without trial or charge</a>. </p>
<p>It is possible that they were somehow planning attacks or involved with extremism (Israel uses administrative detention to stop people they accuse of planning to commit a future offence) but the evidence used to justify the detention is not disclosed. We don’t even know why they were arrested. </p>
<p>Israel’s place near the top of the Committee to Protect Journalists’ list exposes a difficult paradox. Media freedom is an intrinsic part of a free democracy. A vibrant, awkward and sometimes snarly media is a proven way to keep public debate alive and the political system healthy. </p>
<p>It is often uncomfortable, but you can’t have a strong democratic system without journalists freely and vigorously fulfilling their watchdog role. In fact, a good way to tell if a democracy is sliding is the extent of a government’s crackdown on the media.</p>
<p>This is not to suggest equivalence between Israel and Iran. Israel remains a democracy, and Israeli media is often savagely <a href="https://www.timesofisrael.com/public-trust-in-government-scrapes-bottom-amid-criticism-for-inadequate-war-response/">critical</a> of its government in ways that would be unthinkable in Tehran. </p>
<p>But if Israel wants to restore confidence in its commitment to democratic norms, at the very least it will need to be transparent about the reasons for arresting 17 journalists in less than two months, and the evidence against them. And if there is no evidence they pose a genuine threat to Israeli security, they must be released immediately. </p>
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Read more:
<a href="https://theconversation.com/at-a-time-when-journalism-needs-to-be-at-its-strongest-an-open-letter-on-the-israel-hamas-war-has-left-the-profession-diminished-218596">At a time when journalism needs to be at its strongest, an open letter on the Israel/Hamas war has left the profession diminished</a>
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<img src="https://counter.theconversation.com/content/221411/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Peter Greste is Professor of Journalism at Macquarie University, and the Executive Director of the Alliance for Journalists' Freedom. He was also a signatory of an open letter calling for balanced coverage in the Gaza/Israel conflict and in 2006, covered Gaza for the BBC. </span></em></p>New statistics show a spike in the amount of journalists jailed in the country. To protect its democracy, Israel needs to be transparent about why members of the media are arrested.Peter Greste, Professor of Journalism and Communications, Macquarie UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2192262023-12-06T11:20:55Z2023-12-06T11:20:55ZWhat is the government’s preventative detention bill? Here’s how the laws will work and what they mean for Australia’s detention system<p>After a week of non-stop headlines, the government’s preventative detention legislation <a href="https://www.abc.net.au/news/2023-12-06/preventative-detention-legislation-has-passed/103197024">passed</a> the lower house, just in time for the end of the sitting year.</p>
<p>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.</p>
<p>The legislation comes after a 20-year legal precedent was overturned in November, when the <a href="https://theconversation.com/high-court-reasons-on-immigration-ruling-pave-way-for-further-legislation-218699">High Court found</a> the government could not detain people indefinitely – regardless of whether they had a criminal history. </p>
<p>The High Court’s decision was celebrated by <a href="https://humanrights.gov.au/about/news/media-releases/commission-commends-high-court-ruling-indefinite-immigration-detention">human rights organisations</a> and some <a href="https://www.theguardian.com/commentisfree/2023/nov/09/australia-mandatory-indefinite-immigration-detention-regime-high-court-decision">legal scholars</a>. It was seen as a rare opportunity to reshape Australia’s immigration detention policies in line with international law, the constitutional separation of powers, and principles of procedural justice and proportionality. </p>
<p>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 “<a href="https://www.smh.com.au/politics/federal/dutton-demands-apology-for-o-neil-s-claims-he-voted-to-protect-paedophiles-20231130-p5eo3l.html">hardened criminals</a>”. Anxious to avoid accusations of being “soft”, the government has adopted the same discourse. </p>
<p>Both the government and opposition agree it is necessary to put “dangerous” people back behind bars to protect the community. In a clear break from parliamentary process, the vote on the legislation was scheduled for a <a href="https://www.theage.com.au/politics/federal/teal-mps-slam-perversion-of-democracy-on-immigration-laws-20231206-p5epeg.html">non-sitting day</a>, giving parliamentarians little opportunity to scrutinise or debate the legislation. </p>
<p>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?</p>
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Read more:
<a href="https://theconversation.com/view-from-the-hill-governments-announcement-tsunami-overshadowed-by-crisis-over-ex-detainees-219215">View from The Hill: government's announcement tsunami overshadowed by crisis over ex-detainees</a>
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<h2>What are preventative detention laws?</h2>
<p>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. </p>
<p>For an application to be successful, <a href="https://theconversation.com/view-from-the-hill-governments-announcement-tsunami-overshadowed-by-crisis-over-ex-detainees-219215">two conditions must be met</a>. </p>
<p>First, the person must have been convicted of a crime (either in Australia or overseas) that carries a sentence of at least seven years’ imprisonment. </p>
<p>Second, the court must agree the individual poses “an unacceptable risk of committing a serious violent or sexual offence”, and that there is “no less restrictive measure available” to keep the community safe. </p>
<p>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’s previous “<a href="https://www.nswccl.org.au/time_to_review_immigration_minister_god_like_powers">god-like powers</a>” in this area have been widely criticised. </p>
<p>Yet the human rights implications of detaining people who have already served their time are <a href="https://www.smh.com.au/politics/federal/former-security-watchdog-labels-preventative-detention-laws-a-disgrace-20231201-p5eof6.html">significant</a>. Re-detention is likely to be experienced as a secondary punishment, which is contrary to principles of proportionality and procedural fairness. </p>
<p>It is also notable that these laws only apply to people who are not Australian citizens. </p>
<p>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’ validity, with some suggesting the targeted nature of the legislation may leave it vulnerable to a <a href="https://theconversation.com/view-from-the-hill-governments-announcement-tsunami-overshadowed-by-crisis-over-ex-detainees-219215">High Court challenge</a>. </p>
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Read more:
<a href="https://theconversation.com/high-court-reasons-on-immigration-ruling-pave-way-for-further-legislation-218699">High Court reasons on immigration ruling pave way for further legislation</a>
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<h2>Why were these laws brought in?</h2>
<p>On November 8, the High Court of Australia <a href="https://eresources.hcourt.gov.au/showCase/2023/HCA/37">ruled unanimously</a> 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.</p>
<p>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’s a member of a <a href="https://www.hrw.org/tag/rohingya">persecuted minority</a>, he could not be deported back to Myanmar.</p>
<p>With no visa and <a href="https://www.theguardian.com/australia-news/2023/nov/07/nzyq-immigrant-australia-resettle-attempt-high-court">no country</a> willing to accept him, he had been moved into indefinite immigration detention after completing his prison sentence in 2018.</p>
<p>The court’s decision triggered the release of more than <a href="https://www.afr.com/policy/economy/number-of-freed-detainees-reaches-141-20231126-p5emtv">140 people</a>, <a href="https://www.abc.net.au/news/2023-12-06/fourth-person-arrested-after-detainee-released/103197184?utm_source=abc_news_app&utm_medium=content_shared&utm_campaign=abc_news_app&utm_content=other">four of whom</a> have since been arrested for various alleged crimes. </p>
<p>People with no criminal history – including a man who had spent <a href="https://www.hrlc.org.au/news/2023/11/30/ned-kelly-emeralds-free#:%7E:text=Ned%20Kelly%20Emeralds%2C%20an%20Iranian,that%20indefinite%20detention%20was%20unlawful">more than a decade</a> in detention after coming to Australia in search of asylum – were also among those released. </p>
<p>The government has already imposed <a href="https://www.theguardian.com/australia-news/2023/nov/18/draconian-conditions-come-into-effect-for-93-foreigners-released-after-being-illegally-detained-by-australia">strict conditions</a> on the freed individuals, including ankle bracelets and curfews.</p>
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Read more:
<a href="https://theconversation.com/the-high-court-has-decided-indefinite-detention-is-unlawful-what-happens-now-217438">The High Court has decided indefinite detention is unlawful. What happens now?</a>
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<h2>What is being missed in the current debate?</h2>
<p>Prior to the High Court’s decision, refugees, people seeking asylum, stateless people and other non-citizens without a valid visa were regularly subject to indefinite mandatory detention. <a href="https://www.homeaffairs.gov.au/research-and-stats/files/immigration-detention-statistics-31-august-2023.pdf">As of August 2023</a>, Australia held 1,056 people in immigration detention; the average duration of detention was 708 days. </p>
<p>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.</p>
<p>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 <a href="https://humanrights.gov.au/our-work/asylum-seekers-and-refugees/national-inquiry-children-immigration-detention-2014">thousands of children</a>, whose detention continues to be permitted under Australian law. </p>
<p><a href="https://bristoluniversitypress.co.uk/visiting-immigration-detention">Conditions in detention</a> are often punitive, and have been subject to regular <a href="https://www.smh.com.au/national/limitless-detention-of-refugees-is-inhumane-and-must-end-says-un-torture-watchdog-20230414-p5d0et.html">international criticism</a>. </p>
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Read more:
<a href="https://theconversation.com/futile-and-cruel-plan-to-charge-fees-for-immigration-detention-has-no-redeeming-features-183035">'Futile and cruel': plan to charge fees for immigration detention has no redeeming features</a>
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<p>The current debate about immigration detention glosses over these realities. It obscures the profound humanitarian implications of the High Court’s ruling. </p>
<p>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. </p>
<p><em>Update</em>: <em>The legislation passed the House of Representatives late on Wednesday night.</em></p><img src="https://counter.theconversation.com/content/219226/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michelle Peterie receives funding from the Australian Research Council. She also undertakes research in partnership with the Australian Human Rights Commission. </span></em></p><p class="fine-print"><em><span>Amy Nethery does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The release of more than 140 ex-detainees from immigration detention has prompted a panicked government response. So, what does the legislation say, and what happens now?Michelle Peterie, Research Fellow, University of SydneyAmy Nethery, Senior Lecturer in Politics and Policy Studies, Deakin UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2179122023-11-16T10:02:28Z2023-11-16T10:02:28ZGrattan on Friday: A government in a big hurry gives opposition some wins on ex-detainees<p>It’s not very often we see a bill marched through parliament at such a pace as this week. </p>
<p>After being caught on the hop by the High Court, the government has brought in emergency legislation to strengthen its powers to control more than 80 people, some of them serious criminals, it has been forced to release from immigration detention. The bill was introduced in the lower house on Thursday morning and passed the parliament Thursday night. </p>
<p>Those of an irreverent turn of mind might recall Scott Morrison’s Great Strawberry Crisis of September 2018, when a bill was also raced through in a day. </p>
<p>Both the strawberry bill and this one were enacted in the name of “keeping the community safe”. </p>
<p>The strawberry exercise, following the discovery of needles in some fruit, was an obvious political stunt. This week’s legislation goes to a serious matter, although there’s dispute about the threat to community safety, given the risks posed by these people aren’t greater than those presented by local criminals who leave jail. The difference is these are non-citizens.</p>
<p>The High Court isn’t usually front and centre in politics. But when it is, it can land sharp punches that throw governments off balance. </p>
<p>The Albanese government always knew the court might rule, as it did last week, that people can’t be held indefinitely in immigration detention. But on the basis of its past record, the odds seemed against it doing so. </p>
<p>The Coalition says the government failed to take into account a hint months ago from one judge. Certainly the government wasn’t as prepared as it should have been when the decision came. </p>
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Read more:
<a href="https://theconversation.com/the-latest-citizenship-stripping-plan-risks-statelessness-indefinite-detention-and-constitutional-challenge-107439">The latest citizenship-stripping plan risks statelessness, indefinite detention and constitutional challenge</a>
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<p>It initially concentrated on putting conditions into people’s visas and making sure security and law enforcement authorities were prepared. </p>
<p>It was quickly obvious, however, that a robust response would be required. Regardless of the logic, the argument that these people pose no more danger than do post-sentence Australians wouldn’t wash. This was especially obvious <a href="https://www.theguardian.com/australia-news/2023/nov/14/sonya-was-told-her-rapist-would-never-be-free-then-a-high-court-decision-saw-him-released-into-the-brisbane-community">when media stories appeared about frightened victims</a>. </p>
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Read more:
<a href="https://theconversation.com/politics-with-michelle-grattan-james-paterson-on-the-high-courts-decision-on-detention-and-rising-anti-semitism-217808">Politics with Michelle Grattan: James Paterson on the High Court's decision on detention and rising anti-Semitism</a>
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<p>The government’s situation was complicated by the court’s delay in providing reasons for its decision (on which, incidentally, we don’t know whether the judges were unanimous or split). </p>
<p>The explanation of the court’s action is that this was a habeas corpus case, so the court’s first duty was to the individual at the centre of it. That meant when it decided the man should be released, it had an obligation to say so immediately. </p>
<p>Immigration Minister Andrew Giles, a junior minister, visibly struggled under the Coalition’s attack in parliament. The optics weren’t helped by the departure of Anthony Albanese late Wednesday for the APEC meeting in the United States. It’s been reported this was a trip the PM would have preferred to miss, but felt obliged to make because Joe Biden expected him to be there.</p>
<p>The High Court decision affected immediately more than 90 people, a number of whom had been convicted of major crimes including murder and rape. More than 80 have been released. The total number potentially involved could run into the hundreds.</p>
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Read more:
<a href="https://theconversation.com/the-high-court-has-decided-indefinite-detention-is-unlawful-what-happens-now-217438">The High Court has decided indefinite detention is unlawful. What happens now?</a>
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<p>The government kept repeating it had no choice but to let the detainees out at once. Minister for Home Affairs Clare O'Neil said, “If I had any legal power to do it, I would keep every one of those people in detention. Some of those people have committed deplorable, disgusting crimes. I am raising three children in this country, and I want a safe Australia.”</p>
<p>The emergency legislation, ticked off by a special caucus meeting, meant the Commonwealth could deploy ankle monitoring bracelets and impose curfews. </p>
<p>There was a catch-22 in the powers the government previously had. If a person breached their visa obligations, they could be sent to immigration detention – but after the court judgement, that penalty was no longer available. This made legislation necessary, so people could be jailed.</p>
<p>The government rushed the bill through the House of Representatives on Thursday morning in about an hour. The opposition was not allowed to move amendments. </p>
<p>The Coalition prepared several amendments, substantially broadening the restrictions, to pursue in the Senate. But, anxious to lower the temperature, speed the bill’s passage, and get the issue off the table, acting Prime Minister Richard Marles approached Opposition leader Peter Dutton. Marles and other ministers met Dutton in Marles’ office, and the government agreed to all the opposition amendments. They included mandatory minimum sentencing for visa breaches – which is inconsistent with Labor’s platform. It’s understood Albanese was kept abreast of things.</p>
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Read more:
<a href="https://theconversation.com/i-have-no-rights-what-happens-to-stateless-people-in-australia-after-the-high-courts-ruling-217363">'I have no rights': what happens to stateless people in Australia after the High Court's ruling?</a>
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<p>The legislation may be stopgap because, without the court’s reasons the government is working, to a degree, in the dark. More legislation could be needed next year. </p>
<p>The Greens have denounced the extra controls. The Greens’ Nick McKim told the Senate. “Make no mistake, this is Prime Minister Albanese’s Tampa moment and history will condemn him for this, just as it condemned Mr Howard and Mr Beazley over 20 years ago”. This was a reference to Coalition legislation for a drastic response to the asylum seekers on the Tampa.</p>
<p>McKim accused Labor of “an abject craven capitulation by a party that has forgotten where it came from, and forgotten what it used to stand for.” He predicted a High Court challenge to the legislation.</p>
<p>David Manne, executive director of Refugee Legal, says a challenge is “absolutely” possible. He says the new law confers “extraordinary powers” that are beyond necessity and proportionality. </p>
<p>Manne says the controls imposed could involve another deprivation of a person’s liberty, when the High Court has just ruled against the deprivation of their liberty.</p>
<p>In crude political terms, Labor knows it is always potentially vulnerable on issues involving asylum seekers and refugees. That vulnerability is on two flanks. The Coalition will exploit any situation to paint Labor as weak. The Greens will cast Labor as heartless. </p>
<p>The government hopes the legislation provides the necessary belt and braces to send the community the message that, despite initial fumbling, it is in control of this unexpected situation.</p><img src="https://counter.theconversation.com/content/217912/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michelle Grattan does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The High Court isn’t usually front and centre in politics. But when it is, it can land unexpected punches that throw governments off balance.Michelle Grattan, Professorial Fellow, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2178082023-11-15T08:14:56Z2023-11-15T08:14:56ZPolitics with Michelle Grattan: James Paterson on the High Court’s decision on detention and rising anti-Semitism<p>Last week the High Court ruled that holding high-risk asylum seekers in indefinite detention was unconstitutional. As a consequence of the court decision, more than 80 people, some of whom were convicted of serious crimes including murder and rape, have been released. The government will rush in legislation on Thursday to deal with the fallout.</p>
<p>In this podcast, Liberal senator and Shadow Minister for Home Affairs and Cyber Security James Paterson joins The Conversation to discuss the High Court’s ruling, his concerns about increasing anti-Semitism across the country, the rising cyber risks, and Australia’s future relations with China.</p><img src="https://counter.theconversation.com/content/217808/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michelle Grattan does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>In this podcast, Liberal Senator James Paterson joins The Conversation to discuss the High Court's ruling, his concerns about rising anti-Semitism, rising cyber risks, and Australia's future relations with ChinaMichelle Grattan, Professorial Fellow, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2174382023-11-10T07:14:08Z2023-11-10T07:14:08ZThe High Court has decided indefinite detention is unlawful. What happens now?<p>This week, the High Court of Australia <a href="https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCATrans/2023/154.html">ordered</a> the release of a Rohingya man from immigration detention where he had been for the last five and a half years. </p>
<p>Commentators and human rights groups have been <a href="https://x.com/KaldorCentre/status/1722171447702077881?s=20">celebrating</a> this decision, which indicates the court will overturn a 20-year-old precedent.</p>
<p>The court has stated it will release its decision at a later time. It is important to wait for that judgement to determine the full implications of the decision and how it may limit the government’s power to detain non-citizens. </p>
<p>But here’s a brief rundown on the background of the case and some considerations of what could happen next.</p>
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<strong>
Read more:
<a href="https://theconversation.com/i-have-no-rights-what-happens-to-stateless-people-in-australia-after-the-high-courts-ruling-217363">'I have no rights': what happens to stateless people in Australia after the High Court's ruling?</a>
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<h2>What laws did the case focus on?</h2>
<p>The laws in question are in the Migration Act, which <a href="https://classic.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s189.html">states</a> a non-citizen who does not hold a visa must be detained. </p>
<p>Currently people in immigration detention do not have the right to have a court determine whether their detention is necessary, reasonable, and/or proportionate. These assessments are undertaken by departmental officials and the minister. </p>
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<p>The law considers detention mandatory, irrespective of the individual’s circumstances. </p>
<p>In the case of <a href="https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2004/37.html">Al-Kateb v Godwin</a>, the chief justice of the High Court described the need for detention:</p>
<blockquote>
<p>A person […] might be young or old, dangerous or harmless, likely or unlikely to abscond, recently in detention or someone who has been there for years, healthy or unhealthy, badly affected by incarceration or relatively unaffected. The considerations that might bear upon the reasonableness of a discretionary decision to detain such a person do not operate.</p>
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<p>The detained person must remain so until granted a visa or is removed. </p>
<p>Removal, if it’s needed, must occur as soon as “reasonably practicable”. </p>
<p>Over the years, many cases have tested these laws, and until now, the High Court has upheld them.</p>
<p>The lack of time limits on detention, and the inability to challenge it, have made Australia an outlier internationally.</p>
<p>The laws have also been <a href="https://reliefweb.int/report/australia/new-un-report-torture-urges-changes-australian-refugee-policy#:%7E:text=The%20Committee%20noted%20a%20number,%2Dtreatment%20and%20suspicious%20deaths%E2%80%9D.">heavily criticised</a>, both domestically and globally. </p>
<p>Such has been the egregious nature of the system that the High Court allowed the UNSW Kaldor Centre for International Refugee Law and the Human Rights Law Centre to argue the <a href="https://www.kaldorcentre.unsw.edu.au/news/indefinite-immigration-detention-unlawful-high-court-rules">international human rights</a> dimensions of the case.</p>
<p>Despite this, the policy has had bipartisan political support for decades. </p>
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Read more:
<a href="https://theconversation.com/futile-and-cruel-plan-to-charge-fees-for-immigration-detention-has-no-redeeming-features-183035">'Futile and cruel': plan to charge fees for immigration detention has no redeeming features</a>
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<h2>Who was at the centre of the case?</h2>
<p>The Rohingya refugee at the centre of the case is referred to as “NZYQ”. He’s around 30 years old.</p>
<p>As a Rohingya, he had <a href="https://www.hrw.org/news/2023/11/09/landmark-australian-ruling-rejects-indefinite-immigration-detention">not been able to</a> obtain citizenship of Myanmar and was stateless. </p>
<p>He had arrived in Australia by boat in 2012. He had been granted a temporary visa, but this was cancelled in 2015 after he committed <a href="https://www.theguardian.com/australia-news/2023/nov/09/high-court-indefinite-immigration-detention-coalition-safety">a criminal offence</a> and was sentenced to a term in prison. </p>
<p>Still unable to get a visa, he was transferred to immigration detention once he’d served his sentence. </p>
<p>Australia accepted the man could not be sent to Myanmar, and instead tried unsuccessfully to have a number of other countries take him via their refugee or humanitarian programs. </p>
<p>Having found there was no country he could be removed to in the “reasonably foreseeable future” and his visa refused, the man was facing the prospect of remaining in detention indefinitely. </p>
<p>In light of this, the High Court found his ongoing detention was unlawful and they ordered his immediate release from detention.</p>
<h2>Law that comes with a cost</h2>
<p>There is an increasing number of people in detention who remain there for long periods of time. Some are stateless, and others who can’t be returned to their home countries due to risk of persecution.</p>
<p>Over the past five years, the average length of detention has increased from <a href="https://www.homeaffairs.gov.au/research-and-stats/files/immigration-detention-statistics-31-august-2017.pdf%20to%20708%20dayshttps://www.homeaffairs.gov.au/research-and-stats/files/immigration-detention-statistics-31-august-2023.pdf">445 days</a> to <a href="https://www.homeaffairs.gov.au/research-and-stats/files/immigration-detention-statistics-31-august-2023.pdf">708 days</a>. Some people have been detained for more than 10 years. </p>
<p>One of the many criticisms levelled at this system is that it’s extremely expensive.</p>
<p>Between 2020 and 2021, the <a href="https://www.refugeecouncil.org.au/detention-australia-statistics/10/">average cost</a> to the Australian taxpayer for one person in an immigration detention facility was $428,542.</p>
<p>That’s not to mention the significant physical and mental health toll on people.</p>
<p>There have been close to <a href="https://www.refugeecouncil.org.au/detention-australia-statistics/10/">3,000 incidents of self-harm</a>, real and threatened, in detention over the past five years.</p>
<h2>So what happens in the short term?</h2>
<p>As a first step, the government may be facing the prospect of releasing a number of people who have been detained for several years. </p>
<p>It is estimated there may be <a href="https://www.theguardian.com/australia-news/2023/nov/08/australia-high-court-indefinite-detention-ruling-government">92 people</a> impacted by the judgement. </p>
<p>The government has stated the Rohingya man in the case has been released <a href="https://www.theguardian.com/australia-news/2023/nov/09/high-court-indefinite-immigration-detention-coalition-safety">on “strict conditions”</a>, but we don’t know what sort of visa he might be on.</p>
<p>It is not clear what those conditions are, but legally, a person can be released from detention on a temporary “bridging visa”. </p>
<p>The Department of Home Affairs can impose conditions on a bridging visa which could include: </p>
<ul>
<li><p>where the person lives</p></li>
<li><p>reporting regularly to the Department of Home Affairs</p></li>
<li><p>that the person “not engage in criminal conduct”</p></li>
<li><p>that they comply with a specific “Code of Behaviour”.</p></li>
</ul>
<p>This, of course, should be accompanied by a range of psychological and social support services, which are currently <a href="https://immi.homeaffairs.gov.au/what-we-do/status-resolution-service/status-resolution-support-services">very limited</a>.</p>
<p>There will need to be consideration for better pathways to more visa certainty and permanent residency, especially for <a href="https://theconversation.com/i-have-no-rights-what-happens-to-stateless-people-in-australia-after-the-high-courts-ruling-217363">stateless people</a>.</p>
<h2>Legislative reform on the cards</h2>
<p>We need to wait for the judgement to determine what, if any, legislative reform may be needed, but the government will be considering a number of options. </p>
<p>We should use this opportunity to ensure our laws comply with our human rights obligations.</p>
<p>International standards specify that a person detained for immigration purposes must be brought before a judicial authority “promptly” and that their detention must be subject to “regular periodic reviews”. </p>
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Read more:
<a href="https://theconversation.com/new-immigration-detention-bill-could-give-australia-a-fresh-chance-to-comply-with-international-law-188519">New immigration detention bill could give Australia a fresh chance to comply with international law</a>
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<p>There is a substantial <a href="https://www.kaldorcentre.unsw.edu.au/publication/immigration-detention-australia">body of evidence</a> demonstrating that hasn’t been the case for far too long.</p>
<p>A key legislative reform should be to make detention discretionary instead of mandatory. People should also have access to independent review of their detention.</p>
<p>There has been a wealth of <a href="https://www.aph.gov.au/binaries/house/committee/mig/detention/report/fullreport.pdf">inquiries</a>, <a href="https://idcoalition.org/cap/">submissions</a> and examples from overseas which the government could look to, for a start. </p>
<p>More will be revealed about this case in the coming weeks and months, but there are many things the government can start doing immediately to better balance this unfair and punitive system.</p><img src="https://counter.theconversation.com/content/217438/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Mary Anne Kenny has previously received funding from the Australian Research Council and sitting fees from the Department of Home Affairs</span></em></p>This week, the High Court made an order which overturns the laws on which much of Australia’s immigration system is based. What happens to the law, and those most affected by it, now?Mary Anne Kenny, Associate Professor, School of Law, Murdoch UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2173632023-11-10T00:18:22Z2023-11-10T00:18:22Z‘I have no rights’: what happens to stateless people in Australia after the High Court’s ruling?<figure><img src="https://images.theconversation.com/files/558737/original/file-20231109-17-q814h2.jpg?ixlib=rb-1.1.0&rect=21%2C50%2C4803%2C3168&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/stateless-word-dictionary-concept-1155404044">Shutterstock</a></span></figcaption></figure><p>The decision by the High Court of Australia this week <a href="https://www.abc.net.au/news/2023-11-08/indefinite-immigration-detention-ruled-unlawful-by-high-court/101569082">overturning the legality</a> of indefinite immigration detention marks a watershed moment in Australian legal history. </p>
<p>For almost two decades, stateless people have faced the prospect of spending their lives behind bars. </p>
<p>Now, a stateless <a href="https://www.abc.net.au/news/2023-11-10/asylum-seekers-indefinite-detention-to-be-released/103088762">Rohingya refugee</a> has been released from detention.</p>
<p>With no “stateless” visa category or pathway to permanency, stateless people will continue to face a life of uncertainty in the Australia community, begging the question; what next?</p>
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Read more:
<a href="https://theconversation.com/government-must-use-trauma-informed-approach-to-end-uncertainty-on-refugee-visa-applications-203758">Government must use trauma-informed approach to end uncertainty on refugee visa applications</a>
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<h2>Overturning decades of precedent</h2>
<p>This week the Australian High Court <a href="https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCATrans/2023/154.html">ordered</a> the immediate release of the stateless refugee, known as “NZYQ”, from immigration detention.</p>
<p>He’d been held there for more than five years. </p>
<p>The Court found that because there was no real prospect of his removal from Australia “becoming practicable in the reasonably foreseeable future”, his detention was unlawful.</p>
<p>This decision is highly significant, overturning almost twenty years of legal precedent established in <a href="https://eresources.hcourt.gov.au/showCase/2004/HCA/37">2004.</a> </p>
<p>In that case, the High Court upheld the ability of the Australian government to detain people for an unlimited period. </p>
<p>That looked to be the fate of the man at the centre of this week’s case.</p>
<p>Having had his visa cancelled due to a <a href="https://www.theguardian.com/australia-news/2023/nov/09/high-court-indefinite-immigration-detention-coalition-safety">criminal conviction</a> and unable to be returned to Myanmar as a stateless refugee, he faced potentially being detained for the rest of his life.</p>
<p>Australia’s system of mandatory indefinite detention, a bipartisan policy introduced in 1992, is unique, even when compared with countries with similar legal traditions, such as the UK. </p>
<p>Available <a href="https://www.homeaffairs.gov.au/research-and-stats/files/immigration-detention-statistics-31-august-2023.pdf">government statistics</a> indicate there are currently over 1,000 people in immigration detention, 31 of whom are stateless.</p>
<p>The average length somebody is detained in Australia is a staggering <a href="https://www.homeaffairs.gov.au/research-and-stats/files/immigration-detention-statistics-31-august-2023.pdf">708 days</a>.</p>
<p>More than 100 people have been held for more than five years. </p>
<h2>What does is mean to be stateless?</h2>
<p>There is little understanding of statelessness in Australia, despite the fact it affects millions of people globally. </p>
<p>A stateless person is someone with no nationality. Legally speaking, they are recognised as “belonging” to no country in the world. </p>
<p>While the <a href="https://law.unimelb.edu.au/__data/assets/pdf_file/0009/4460454/Statelessness_overview_factsheet_Feb_2023.pdf">causes of statelessness</a> vary, the dominant root cause is usually discrimination of one kind or another, including on the grounds of gender, race or religion.</p>
<p>The legal definition of statelessness does not do justice to the lived reality. </p>
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Read more:
<a href="https://theconversation.com/a-migration-review-could-close-some-disability-discrimination-loopholes-but-not-for-people-already-waiting-or-refused-visas-215894">A migration review could close some disability discrimination loopholes – but not for people already waiting or refused visas</a>
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<p>Statelessness has the potential to impact almost every aspect of a person’s day-to-day life.</p>
<p>It can inhibit freedom of movement, access to education, housing, employment and medical care. </p>
<p>In Australia, these challenges are compounded by an often overwhelming sense of uncertainty about the future and the ever-present threat of detention.</p>
<p>The lived reality of statelessness is perhaps better understood in the <a href="https://law.unimelb.edu.au/__data/assets/pdf_file/0007/3645547/StatelessChildrenReport.pdf">words of Amir</a>, a stateless father living in Australia:</p>
<blockquote>
<p>Being stateless has been a huge source of sadness for me in my life. At times it has made me question my very existence and made me wonder why my parents chose to bring me into this world. I’ve never felt like I have a future. Wherever I’ve gone, I have no rights.</p>
</blockquote>
<p>We must never forget that behind legal judgements are the lives of real people. Many stateless families we work with in the <a href="https://law.unimelb.edu.au/centres/statelessness/engage/stateless-children-legal-clinic">Stateless Legal Clinic</a> have spent years in immigration detention, including Australian-born children who marked their <a href="https://firstdogonthemoon.com.au/cartoons/2014/11/12/baby-ferouzs-first-birthday/">first birthdays</a> behind the wire. </p>
<p>The ongoing health impacts of detention, especially on children, have been <a href="https://humanrights.gov.au/our-work/2-findings-and-recommendations#:%7E:text=The%20Commission%20makes%20the%20general,prolonged%20detention%20on%20the%20mental">well documented</a>.</p>
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<h2>A lack of legal protections means an uncertain future</h2>
<p>Along with the harmful effects of detention is the gap in legal protections stateless people experience in the Australian community. </p>
<p>Australia doesn’t have a distinct visa category for stateless people or pathway to permanent residency. </p>
<p>Many live with crippling prohibitions on their ability to build a secure life for themselves and their children. Access to some of the basic rights many of us take for granted – such as education - can be challenging. In the <a href="https://law.unimelb.edu.au/__data/assets/pdf_file/0007/3645547/StatelessChildrenReport.pdf">words of stateless mother Nur:</a></p>
<blockquote>
<p>Being stateless makes things challenging for us here. My children feel Australian – yet we are often reminded they are not […] our eldest child, Iman started kindergarten this year. It was so difficult trying to enrol him – they asked about his passport, his visa, his status. I felt embarrassed having to explain he has no passport – no identity. No certainty of his future.</p>
</blockquote>
<p>Australian law does not adequately protect the rights of stateless people in this country. </p>
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Read more:
<a href="https://theconversation.com/why-the-governments-plan-to-overhaul-the-asylum-system-is-a-smart-use-of-resources-and-might-just-work-215061">Why the government's plan to overhaul the asylum system is a smart use of resources – and might just work</a>
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<p>This week’s High Court decision is a critical first step in protecting stateless people from being indefinitely deprived of their liberty. What happens next is just as important. </p>
<p>In the absence of being recognised as citizens of any country in the world, Australia can – and must – do more to offer stateless children and adults a life of certainty in this country.</p><img src="https://counter.theconversation.com/content/217363/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michelle Foster receives funding from the Australian Research Council. </span></em></p><p class="fine-print"><em><span>Katie Robertson does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The overturning of almost 20 years of legal precedent allowing indefinite detention is a watershed moment. But stateless people in Australia have few rights and little say over their futures.Katie Robertson, Director - Stateless Legal Clinic, The University of MelbourneMichelle Foster, Professor, Melbourne Law School, The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1862942022-07-21T01:30:22Z2022-07-21T01:30:22Z3 types of denial that allow Australians to feel OK about how we treat refugees<p>As one of its first acts in government, the newly elected Labor government <a href="https://www.abc.net.au/news/2022-05-24/labor-turns-back-election-day-asylum-seeker-boat-arrival/101095322">turned back a boat</a> of Sri Lankan asylum seekers trying to enter Australia. </p>
<p>Labor has <a href="https://www.smh.com.au/politics/federal/albanese-government-turns-around-its-first-asylum-seeker-boat-20220524-p5ao2y.html">vowed to continue Operation Sovereign Borders</a>, including boat turnbacks and offshore detention. This is concerning. Not only do <a href="https://www.newsouthbooks.com.au/books/refugee-rights-policy-wrongs/">turnbacks violate international law</a>, but offshore detention has resulted in <a href="https://tbinternet.ohchr.org/Treaties/CAT/Shared%20Documents/AUS/INT_CAT_NGO_AUS_18683_E.pdf">torture and cruel and inhuman treatment</a> of refugees. </p>
<p>Even more concerning is the lack of criticism Labor has received for continuing offshore detention and turnbacks. Apart from being condemned by <a href="https://www.smh.com.au/politics/federal/albanese-government-turns-around-its-first-asylum-seeker-boat-20220524-p5ao2y.html">human rights groups</a> and <a href="https://www.abc.net.au/news/2022-05-24/labor-turns-back-election-day-asylum-seeker-boat-arrival/101095322">minor political parties</a>, Labor’s refugee policies appear to have gone without much comment from a large part of the Australian public. </p>
<p>As I found in <a href="https://academic.oup.com/jrs/advance-article/doi/10.1093/jrs/feac041/6646968?login=true">my new research paper</a>, the Australian government has used three forms of denial, creating physical and psychological distance between itself and refugees.</p>
<p>This allows the federal government to promote illegal and harmful policies while proclaiming to still be upholding human rights.</p>
<h2>Creating indifference</h2>
<p>Human rights abuses in offshore detention have been <a href="https://www.amnesty.org/en/documents/asa12/002/2013/en/">well documented</a>. </p>
<p>On Manus Island (in Papua New Guinea) and Nauru, refugees have <a href="https://law.stanford.edu/publications/communique-to-the-office-of-the-prosecutor-of-the-international-criminal-court-under-article-15-of-the-rome-statute-the-situation-in-nauru-and-manus-island-liability-for-crimes-against-humanity/">faced torture</a>, inhumane detention, overcrowding, violence from guards, sexual assault and rape, and mental harm. Children as young as nine have suffered <a href="https://msf.org.au/sites/default/files/attachments/indefinite_despair_4.pdf">severe depression and attempted to commit suicide</a>. </p>
<p><a href="https://www.refugeecouncil.org.au/operation-sovereign-borders-offshore-detention-statistics/2/">According to the latest data by the Refugee Council</a>, 112 people remain on Nauru and just over 100 people are on Manus Island. Although New Zealand will <a href="https://theconversation.com/aus-nz-refugee-deal-is-a-bandage-on-a-failed-policy-its-time-to-end-offshore-processing-180241">now resettle</a> many of them in the coming years, Nauru detention centre will continue to <a href="https://www.theguardian.com/australia-news/2021/sep/24/australia-signs-deal-with-nauru-to-keep-asylum-seeker-detention-centre-open-indefinitely">remain open indefinitely</a>.</p>
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<p>How can Australia continue to <a href="https://www.dfat.gov.au/international-relations/themes/human-rights">promote itself as upholding human rights</a>, while at the same time maintain such policies? </p>
<p>One answer is that offshore detention has created indifference to the suffering of refugees. Australia’s policy framework has produced what the UN Special Rapporteur on Torture has called “<a href="https://documents-dds-ny.un.org/doc/UNDOC/GEN/N20/188/03/PDF/N2018803.pdf?OpenElement">moral disengagement</a>”. This involves “the self-deceptive denial of reality” by denying the wrongfulness of, responsibility for, or occurrence of, human rights violations. </p>
<p>These “self-deceptive” strategies reduce moral dilemmas that come from violating human rights norms.</p>
<p><a href="https://academic.oup.com/jrs/advance-article/doi/10.1093/jrs/feac041/6646968?login=true">My research</a> found Australian federal governments have used three forms of denial to push refugees out of sight and out of mind – denial of responsibility, denial of fact, and denial of wrongdoing.</p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/cruel-costly-and-ineffective-australias-offshore-processing-asylum-seeker-policy-turns-9-166014">Cruel, costly and ineffective: Australia's offshore processing asylum seeker policy turns 9</a>
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<h2>3 types of denial</h2>
<p><strong>Denying responsibility</strong> </p>
<p>The government has denied responsibility over refugees in offshore detention by denying it has jurisdiction. The term “jurisdiction” <a href="https://www.cambridge.org/au/academic/subjects/law/human-rights/access-asylum-international-refugee-law-and-globalisation-migration-control?format=PB">is different</a> from sovereign territory. A state can have jurisdiction outside of its sovereign territory when it <a href="https://hudoc.echr.coe.int/eng#%7B%22fulltext%22:%5B%22HIRSI%20JAMAA%20AND%20OTHERS%20V.%20ITALY%22%5D,%22documentcollectionid2%22:%5B%22GRANDCHAMBER%22,%22CHAMBER%22%5D,%22itemid%22:%5B%22001-109231%22%5D%7D">exercises effective control over others</a>. </p>
<p>Showing that a country has jurisdiction over others is important. It can help hold states accountable for human rights abuses and establish responsibility for those in its care. </p>
<p>The Australian government has <a href="https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Legal_and_Constitutional_Affairs/Manus_Island/Report">argued</a> that PNG and Nauru – which aren’t part of Australia – have jurisdiction over the detention facilities and the refugees in them. It claims all Australia does is provide financial and material support.</p>
<p>Such arguments make it difficult to hold Australia accountable. But they are also incorrect. <a href="https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Regional_processing_Nauru/Regional_processing_Nauru/Final_Report">A Senate inquiry</a>, the <a href="https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Regional_processing_Nauru/Regional_processing_Nauru/Submissions">UN High Commissioner for Refugees</a>, and <a href="https://www.hrw.org/news/2016/08/02/australia-appalling-abuse-neglect-refugees-nauru">human rights groups</a>, among others, have argued Australia exercises effective control and shares jurisdiction with Nauru and PNG. </p>
<p>Denying jurisdiction creates physical and psychological distance between itself and refugees, helping to create indifference. By denying responsibility, human rights abuses become someone else’s problem.</p>
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<p><strong>Denying fact</strong> </p>
<p>A second key strategy is denial of fact. The Australian government, along with the governments of Nauru and PNG, has <a href="https://www.bbc.com/news/world-australia-37675003">denied human rights abuses</a> and made it hard to find out what occurs in offshore detention. </p>
<p><a href="https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Legal_and_Constitutional_Affairs/NauruandManusRPCs/Report">Human rights monitors</a> and <a href="https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Regional_processing_Nauru/Regional_processing_Nauru/Final_Report">journalists</a> have been restricted or denied access to offshore detention.</p>
<p>Staff have been <a href="https://law.stanford.edu/publications/communique-to-the-office-of-the-prosecutor-of-the-international-criminal-court-under-article-15-of-the-rome-statute-the-situation-in-nauru-and-manus-island-liability-for-crimes-against-humanity/">threatened with prosecution</a> under confidentiality agreements if they speak publicly about detention treatment. </p>
<p>Operation Sovereign Borders has also been shrouded in <a href="https://www.hrw.org/news/2016/08/02/australia-appalling-abuse-neglect-refugees-nauru">secrecy</a>. For example, it was common for <a href="https://www.theguardian.com/australia-news/2022/may/21/scott-morrison-breaks-own-rule-against-commenting-on-on-water-matters-to-confirm-asylum-boat-intercepted">Coalition</a> <a href="https://www.theguardian.com/australia-news/2015/jun/10/peter-dutton-invokes-on-water-secrecy-over-claim-of-payments-to-boat-crew">ministers</a> and <a href="https://www.abc.net.au/pm/content/2013/s3887267.htm">border force officials</a> to refuse to answer questions in the media about “on water matters”. </p>
<p>As Peter Young, the former mental health director of IHMS, the medical provider in immigration detention, <a href="https://www.amnesty.org/en/documents/asa12/4934/2016/en/">stated</a>: “Secrecy is necessary because these places are designed to damage”.</p>
<p>These policies have made it difficult to know what occurs in offshore detention. They also create doubt about whether such harm is even happening at all.</p>
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<p><strong>Denying wrongdoing</strong> </p>
<p>Along with “stopping the boats”, the government has argued offshore detention has been necessary to save lives at sea.</p>
<p>When former UN Special Rapporteur on Torture Juan Méndez criticised Australia for violating the UN Convention against Torture in 2015, then Prime Minister Tony Abbott <a href="https://www.smh.com.au/politics/federal/tony-abbott-australians-sick-of-being-lectured-to-by-united-nations-after-report-finds-antitorture-breach-20150309-13z3j0.html">stated</a></p>
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<p>The most humanitarian, the most decent, the most compassionate thing you can do is stop these boats because hundreds, we think about 1200 in fact, drowned at sea during the flourishing of the people smuggling trade under the former government.</p>
</blockquote>
<p>This is a key strategy of self-deception. By arguing the policy is saving lives, it focuses attention away from the harm refugees suffer, to the humanitarian goal of “saving lives”.</p>
<p>Moral dilemmas about torture or ill treatment are pushed aside, and so are feelings of wrongdoing. </p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/australias-temporary-visa-system-is-unfair-expensive-impractical-and-inconsistent-heres-how-the-new-government-could-fix-it-185870">Australia's temporary visa system is unfair, expensive, impractical and inconsistent. Here's how the new government could fix it</a>
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<h2>Challenging indifference</h2>
<p>Key to ending this illegal and harmful policy is to challenge these self-deceptive strategies that have produced moral disengagement. </p>
<p>Other countries, such as the UK, are following in Australia’s footsteps by <a href="https://www.politico.eu/article/uk-seals-deal-with-rwanda-to-offshore-asylum-migrant-seekers/">introducing offshore detention</a> for asylum seekers. This means challenging strategies that deny reality – and widening our circle of empathy – is more urgent than ever.</p>
<p>It’s indifference that’s helping to maintain offshore detention. And it’s this indifference that needs to be challenged to both respect international law and uphold the rights and dignity of refugees.</p><img src="https://counter.theconversation.com/content/186294/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jamal has received funding from the Australia-Germany JRC Scheme (UA-DAAD) and Department of Foreign Affairs and Trade, United Nations Educational Scientific and Cultural Organisation (UNESCO).</span></em></p>Australia’s offshore detention policies have helped to produce indifference to the suffering of refugees. Pushing refugees out of sight, and out of mind, has now placed them beyond moral concern.Jamal Barnes, Lecturer, Edith Cowan UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1537242021-02-17T00:15:12Z2021-02-17T00:15:12ZOver 1,000 Australians with cognitive disability are detained indefinitely each year. This shameful practice needs to stop<figure><img src="https://images.theconversation.com/files/384365/original/file-20210216-18-1wtm74.jpg?ixlib=rb-1.1.0&rect=1179%2C81%2C4800%2C3863&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>This week, the royal commission into the violence, abuse and neglect of people with disability <a href="https://disability.royalcommission.gov.au/public-hearings">will begin hold hearings</a> on a shameful subject that has long been neglected: the indefinite detention of people with cognitive impairments and/or mental illness in our criminal justice systems.</p>
<p>Indefinite detention is what happens to defendants in criminal cases when they are deemed <a href="https://www.alrc.gov.au/publication/equality-capacity-and-disability-in-commonwealth-laws-dp-81/7-access-to-justice/unfitness-to-stand-trial/#:%7E:text=All%20Australian%20jurisdictions%20have%20enacted,to%20make%20an%20adequate%20defence">unfit to stand trial</a>. </p>
<p>In common law, this “unfitness test” is based on whether the accused has sufficient mental or intellectual capacity to understand the proceedings and make an adequate defence. </p>
<p>If a person is found unfit to plead, they can instead be detained in a prison or forensic unit for the purposes of treatment. This detention can be indefinite if the person is deemed to be a risk of harming themselves or others and is not seen to improve.</p>
<p>While every state and territory has indefinite detention, not every jurisdiction collects or publishes statistics on how many people are being held or for how long.</p>
<p>Australians for Disability Justice, an advocacy group, believes <a href="https://ddwa.org.au/wp-content/uploads/2017/12/ADJ-People-with-Disabilities-in-the-Criminal-Justice-System-for-the-Productivity-Commisison-March-2017.pdf">over 1,000 people</a> with cognitive impairments and/or mental illness are indefinitely detained in Australia every year. According to the group, up to 30% of these people are Indigenous. </p>
<p>This is supported by <a href="https://www.mhdcd.unsw.edu.au/">research</a> from UNSW, which shows Indigenous people are significantly over-represented among those with disability in Australian prisons.</p>
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<h2>Governments put on notice</h2>
<p>Federal, state and territory governments have been put on notice about this practice before.</p>
<p>In 2016, a <a href="https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Community_Affairs/IndefiniteDetention45/Report">Senate inquiry</a> recommended significant reforms to the use of indefinite detention, especially when it came to those with cognitive impairments. </p>
<p>The report was particularly concerned about “the sometimes arbitrary nature of such detention”, particularly “in a criminal justice facility”.</p>
<p>The UN Committee for the Convention on the Rights of People with Disabilities (CRPD) has also <a href="https://disability.royalcommission.gov.au/news-and-media/media-releases/australia-allowing-human-rights-violations-people-disability-disability-royal-commission-report">formally asked Australia</a> twice now to dismantle its indefinite detention regime. Scotland leads the world in doing away with the practice, and many European countries are following suit.</p>
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<strong>
Read more:
<a href="https://theconversation.com/heres-how-we-can-stop-putting-aboriginal-people-with-disabilities-in-prison-49293">Here's how we can stop putting Aboriginal people with disabilities in prison</a>
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<p>Disability justice advocates have also long pushed for change in Australia. For example, the Tasmanian Law Reform Institute <a href="https://www.utas.edu.au/__data/assets/pdf_file/0012/998472/DangerousCriminals_RP_03.pdf">reviewed the law</a> in that state and recommended significantly limiting the use of indefinite detention. </p>
<p>Most jurisdictions have a review tribunal process to determine whether people being held indefinitely can eventually be released with the help of medication or behaviour support. However, all reviews are based narrowly on the risk these people pose to themselves or the community, not on whether a person can live safely in the community with support. </p>
<p>Many people with mental health disorders also do not respond to medications or other therapies. And crucially, there is no “cure” for a person with cognitive impairment, such as an intellectual disability or acquired brain injury.</p>
<h2>Abuse in detention</h2>
<p>Another concern is that indefinite detention is often disproportionate to the offence alleged to have been committed. </p>
<p>For example, people can be held indefinitely for minor crimes, such as threatening behaviour. Those without disability who are convicted of a crime like this receive a sentence with a definite release date. </p>
<p>This means there are two different forms of justice being meted out in Australia — one for people with disability and another for those without disability. In other words, justice is not being served.</p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/people-with-cognitive-disability-shouldnt-be-in-prison-because-theyre-unfit-to-plead-there-are-alternatives-131295">People with cognitive disability shouldn't be in prison because they're 'unfit to plead'. There are alternatives</a>
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<p>In one notable case, the UN CRDP found the Australian government <a href="https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=20566&LangID=E">violated the rights</a> of an intellectually disabled Yamatji man, Marlon Noble, who was held for 10 years without being convicted of a crime. </p>
<p>The committee noted that Noble had no idea how long he would be held. It wrote</p>
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<p>the whole judicial procedure focused on his mental capacity to stand trial without giving him any possibility to plead not guilty and test the evidence submitted against him.</p>
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<p>Making matters even worse, people with cognitive impairment and mental illness who are indefinitely detained also experience serious human rights violations in prisons or forensic units. </p>
<p>Time and again, the Australian Human Rights Commission has found that Indigenous people with cognitive disability have <a href="https://humanrights.gov.au/sites/default/files/content/social_justice/publications/preventing_crime/cog_disr.pdf">experienced</a> cruel and unusual punishment in detention, such as being held in isolation and without disability support.</p>
<p>In 2016, the ABC featured the story of a young Arrente man who had been placed into a restraint chair and injected with tranquillisers up to 17 times by staff at the Alice Springs Correctional Centre. </p>
<p>Despite serious objections from his guardians, the young man remains indefinitely detained in the Northern Territory. His case, along with others, has been referred to the UN. </p>
<p>His family and guardians will also present evidence at the royal commission hearings, detailing his experience in indefinite detention. </p>
<p>Noble, the Arrente man and many others have experienced abuse and violence in their lives due to their disability, including during their time in detention. They, and thousands like them, have been subjected to forced medications and restraints even though these are clearly not therapeutic for people with cognitive disability. </p>
<p>It’s shameful this is happening in a country as affluent as Australia, which has ample capacity to care for people with disability, even those who require highly complex support. </p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/aboriginal-people-with-disabilities-get-caught-in-a-spiral-of-over-policing-49294">Aboriginal people with disabilities get caught in a spiral of over-policing</a>
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<h2>What needs to change</h2>
<p>In dismantling our indefinite detention system, the key is to provide more disability-focused support to those at risk of coming into contact with criminal justice systems.</p>
<p>Besides this, other reforms are also urgently needed:</p>
<ol>
<li><p>Reforming the law to provide other justice options for defendants who are deemed unfit to stand trial, including diverting them from court and potential detention. The length of detention should also be proportionate to the crimes they are alleged to have committed.</p></li>
<li><p>Establishing a community-based, culturally safe accommodation and treatment system for people with disability accused of crimes to serve as an alternative to prison, as is done in Scotland.</p></li>
<li><p>Providing additional legal support to people deemed unfit to stand trial, giving them a voice in the process. </p></li>
</ol>
<p>It is inhumane to hold anyone with disability in indefinite detention in such an arbitrary manner. We hope that by sharing the stories of these people with the royal commission, this deplorable exercise will finally be put to an end.</p>
<hr>
<p><em>Patrick McGee, national manager for policy, advocacy and research at the Australian Federation of Disability Organisations, contributed to this article.</em></p><img src="https://counter.theconversation.com/content/153724/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Eileen Baldry receives funding from the Australian Research Council.
Eileen Baldry is on the board of Public Interest Advocacy Centre</span></em></p>The UN has twice called on Australia to dismantle its indefinite detention system for people with cognitive impairments and mental illness, which disproportionately affects Indigenous people.Eileen Baldry, Professor of Criminology, UNSW SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1312952020-02-23T19:57:55Z2020-02-23T19:57:55ZPeople with cognitive disability shouldn’t be in prison because they’re ‘unfit to plead’. There are alternatives<figure><img src="https://images.theconversation.com/files/315129/original/file-20200212-61981-1s2v17a.jpg?ixlib=rb-1.1.0&rect=32%2C24%2C5387%2C3583&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/man-prison-hands-behind-hold-steel-1115351336">Shutterstock</a></span></figcaption></figure><p>In 2018, the Victorian Ombudsman, Deborah Glass, delivered a <a href="https://www.ombudsman.vic.gov.au/getattachment/8dd8de6a-76dc-4018-8a63-e8b98a5fb4a1/publications/parliamentary-reports/investigation-into-the-imprisonment-of-a-woman-fou.aspx">report</a> about “the saddest case” she had ever seen. </p>
<p>A 39-year-old woman with a developmental disorder had been locked in her prison cell for up to 23 hours a day for more than 18 months. The woman had been charged with breaching an intervention order (a charge which was later dropped) and resisting arrest. </p>
<p>The Ombudsman commented this was not an isolated incident.
Last year, <a href="https://www.theage.com.au/national/victoria/man-suffering-from-brain-injury-locked-in-jail-with-no-end-in-sight-20191115-p53ayi.html">The Age</a> reported a 49-year-old wheelchair user with an acquired brain injury had spent three years in prison with no end date in sight after being charged with assault.</p>
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<em>
<strong>
Read more:
<a href="https://theconversation.com/how-aboriginal-women-with-disabilities-are-set-on-a-path-into-the-criminal-justice-system-48167">How Aboriginal women with disabilities are set on a path into the criminal justice system</a>
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<p>What unites the circumstances of these two people with disabilities is both had been found “unfit to plead”. This finding may lead to indefinite detention and/or supervision despite no finding of guilt. </p>
<p>But there are viable alternatives. Criminal justice liaison officers, disability support workers and communication assistants can help people with cognitive disability understand the criminal process so they can choose to plead guilty or not guilty.</p>
<h2>What are ‘unfitness to plead’ laws?</h2>
<p>Unfitness to plead laws are based on the idea people accused of crimes should not be put on trial if they can’t understand the legal process and the charges against them. The main aim is to avoid unfair trials.</p>
<p>Once charged with a crime, they may not be released or left unsupervised because of concerns about community protection, yet they can’t be convicted or acquitted because holding a trial is considered unfair.</p>
<p>Unfitness to plead rulings mean people with conditions that affect their ability to learn, process, communicate and remember information can end up in detention indefinitely. </p>
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<em>
<strong>
Read more:
<a href="https://theconversation.com/unfit-to-plead-why-does-the-law-jail-those-with-intellectual-disabilities-indefinitely-15504">'Unfit to plead': why does the law jail those with intellectual disabilities indefinitely?</a>
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<h2>There are too many people with cognitive disability in prison</h2>
<p>In a <a href="https://theconversation.com/unfit-to-plead-why-does-the-law-jail-those-with-intellectual-disabilities-indefinitely-15504">previous article</a>, I outlined how people with cognitive disability form a disproportionately large cohort of prisoners. </p>
<p>A 2011 report for the Victorian Department of Justice <a href="https://www.corrections.vic.gov.au/publications-manuals-and-statistics/acquired-brain-injury-in-the-victorian-prison-system">estimated</a> 42% of male prisoners and 33% of female prisoners in Victoria had an acquired brain injury, compared to about 2% of the general population.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/315138/original/file-20200213-41665-zok7dc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/315138/original/file-20200213-41665-zok7dc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=401&fit=crop&dpr=1 600w, https://images.theconversation.com/files/315138/original/file-20200213-41665-zok7dc.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=401&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/315138/original/file-20200213-41665-zok7dc.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=401&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/315138/original/file-20200213-41665-zok7dc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/315138/original/file-20200213-41665-zok7dc.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/315138/original/file-20200213-41665-zok7dc.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Indefinite detention for people with cognitive disability and/or mental illnesses can worsen existing health conditions.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/portrait-woman-desperate-catch-iron-prisonprisoner-1151410031">Shuttershock</a></span>
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</figure>
<h2>An infringement on their liberty</h2>
<p>The Victorian Law Reform Commission <a href="https://www.lawreform.vic.gov.au/sites/default/files/Review_of_the_Crimes_Mental_Impairment_and_Unfitness_to_be_Tried_Act_0.pdf">estimated</a> findings of unfit to plead or not guilty on the grounds of mental impairment make up less than 1% of the total cases that result in a sentence or supervision order in the higher courts.</p>
<p>While those affected by unfitness to plead laws may form a small subset of prisoners with cognitive disability and/or mental illness, data isn’t <a href="https://www.lawreform.vic.gov.au/sites/default/files/Review_of_the_Crimes_Mental_Impairment_and_Unfitness_to_be_Tried_Act_0.pdf">kept</a> in Victoria on how often fitness to plead issues are raised in relation to summary offences (less serious offences). There’s also no national database to make comparisons about unfitness to plead cases across states and territories.</p>
<p>Extensive data indicates Aboriginal and Torres Strait Islander people with disabilities face added disadvantage in the criminal justice system. One 2012 report found <a href="http://www.disabilityjustice.edu.au/1008">11 of 33 people</a> deemed unfit to plead or “unsound of mind” in Western Australia were Indigenous. Further, all nine men on indefinite supervision orders in the Northern Territory found unfit to plead in 2012 were Indigenous.</p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/supporting-not-imprisoning-aboriginal-people-with-disabilities-could-save-millions-48165">Supporting, not imprisoning, Aboriginal people with disabilities could save millions</a>
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</em>
</p>
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<h2>Efforts to provide support</h2>
<p>In addition to law reforms, several initiatives are under way to support people who may be found unfit to plead navigate the criminal justice system.</p>
<p>The <a href="https://www.alrc.gov.au/publication/equality-capacity-and-disability-in-commonwealth-laws-alrc-report-124/">Australian Law Reform Commission</a> recommended communication assistants and support people for them.</p>
<p>In October 2019, the Council of Australian Governments Disability Reform Council <a href="https://www.dss.gov.au/disability-and-carers-programs-services-government-international-disability-reform-council/communique-9-october-2019">agreed</a> the National Disability Insurance Agency should introduce justice liaison officers to support NDIS participants in youth and adult justice systems. </p>
<p>The NDIS is still developing the scheme, but it has the potential to help people with cognitive disability accused of a crime understand the trial process and in turn avoid findings of unfitness to plead.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/315140/original/file-20200213-41665-1vcdyum.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/315140/original/file-20200213-41665-1vcdyum.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/315140/original/file-20200213-41665-1vcdyum.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/315140/original/file-20200213-41665-1vcdyum.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/315140/original/file-20200213-41665-1vcdyum.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/315140/original/file-20200213-41665-1vcdyum.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/315140/original/file-20200213-41665-1vcdyum.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">The disability royal commission will look into unfit to plead laws.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/barbed-wire-fence-attached-around-prison-356278409">Shuttershock</a></span>
</figcaption>
</figure>
<p>There are several <a href="https://supportingjustice.net/">resources</a> to support people with acquired brain injury and their supporters navigate the criminal justice system. </p>
<p>My colleagues and I developed a <a href="https://socialequity.unimelb.edu.au/projects/unfitness-to-plead">support program</a> with three community legal centres in the Northern Territory, New South Wales and Victoria in 2017 which participants <a href="https://socialequity.unimelb.edu.au/news/latest/unfitness-to-plead-final-report-launched">evaluated highly</a>. This model could be <a href="https://www.cambridge.org/core/journals/international-journal-of-law-in-context/article/economic-case-for-improving-legal-outcomes-for-accused-persons-with-cognitive-disability-an-australian-study/E00FF107275206F4307ADC4F46C0A38C">cost-effective</a>.</p>
<h2>The disability royal commission</h2>
<p>The disability royal commission has released an <a href="https://disability.royalcommission.gov.au/publications/Pages/default.aspx#criminal-justice-system-issues-paper">issues paper</a> on criminal justice and people with disabilities which reflects on a number of issues raised in this article. </p>
<p>The commission is seeking submissions on what supports can help keep people with disabilities out of the criminal justice system or stay safe within the system.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/caring-for-ex-prisoners-under-the-ndis-would-save-money-and-lives-31974">Caring for ex-prisoners under the NDIS would save money and lives</a>
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</em>
</p>
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<img src="https://counter.theconversation.com/content/131295/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Bernadette McSherry receives funding from the Australian Research Council. The Unfitness to Plead project was funded by a National Disability Research and Development Grant. </span></em></p>Programs designed to enhance legal access for people with cognitive disabilities accused of a crime are more humane and could be more cost effective than long-term detention.Bernadette McSherry, Foundation Director, Melbourne Social Equity Institute, The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/539572016-02-09T00:44:52Z2016-02-09T00:44:52ZWhat Making a Murderer tells us about disability and disadvantage in criminal law<figure><img src="https://images.theconversation.com/files/110098/original/image-20160203-5826-xm96vr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Those with learning or other disabilities need someone to back them up in the legal system to avoid injustices.</span> <span class="attribution"><span class="source">Making a Murderer/Netflix</span></span></figcaption></figure><p><em>This article contains spoilers.</em></p>
<hr>
<p>The most shocking moments of the true crime documentary Making a Murderer don’t involve its convicted-exonerated-convicted-again protagonist Steven Avery. They depict two police officers gently coaxing a softly spoken teenager to recount his role in a vicious crime.</p>
<p>Viewers of the wildly popular Netflix series know the story: Steven Avery is released from prison after serving 18 years for a rape he didn’t commit, only to find himself back behind bars for the brutal murder of photographer Teresa Halbach. A cornerstone of the prosecution’s case against Avery is the confession of his 16-year-old nephew, Brendan Dassey. The teenager is presented as an accomplice to the murder. </p>
<p>Dassey is described in the series as “learning disabled”, who reads at a “fourth-grade level”. He is interrogated — alone — and possibly coerced by police into confessing to rape and murder. Dassey later recants the statement, both inside and outside of the courtroom. But, ultimately, Dassey is condemned by the dubious confession and sentenced to life imprisonment for Halbach’s murder. </p>
<p>Dassey’s treatment should shock viewers because it shows how the system is skewed against an accused person such as Dassey. It highlights the importance of appropriate supports for people with cognitive impairments in the criminal justice system. This is as relevant in Australia as it is in the United States. </p>
<h2>The Australian system</h2>
<p>People with cognitive disability are <a href="http://onlinelibrary.wiley.com/doi/10.1111/jppi.12039/abstract;jsessionid=6D588DB83B9EDE13BE486D779E9E0770.f03t02">over-represented in the criminal justice system</a>. This includes people with intellectual impairments, acquired brain injuries and mental health issues. Indigenous people with cognitive disability are <a href="https://theconversation.com/aboriginal-people-with-disabilities-get-caught-in-a-spiral-of-over-policing-49294">doubly disadvantaged</a>. </p>
<p>The Sydney-based Intellectual Disability Rights Service has <a href="http://www.idrs.org.au/publications/read-factsheet.php?factsheet=for-lawyers-people-with-intellectual-disability-under-arrest">called for</a> support for people with cognitive disabilities when interacting with the police. Without appropriate support, people with cognitive disability may want to please authority figures, or may not understand questions or legal cautions. They may also just want to get out of the police station as quickly as possible. </p>
<p>Organisations such as the Victorian Office of the Public Advocate provide “<a href="http://www.publicadvocate.vic.gov.au/our-services/volunteer-programs">independent third persons</a>” during police interviews for precisely these reasons. Such support might have avoided the injustice of Dassey’s case. </p>
<p>Disadvantage doesn’t stop at the investigation phase. Court proceedings pose a number of pitfalls for accused persons with disabilities. And it is here that Australia lags behind other jurisdictions. In the <a href="http://www.theadvocatesgateway.org/intermediaries">United Kingdom</a> and <a href="http://www.access-to-justice.org/communication-intermediaries/roster/communication-intermediaries/">Canada</a>, defendants can be assisted by “intermediaries” who help people with disability understand proceedings and give evidence in court.</p>
<h2>Indefinite detention</h2>
<p>In Australia, accused persons with cognitive disabilities can be held indefinitely after being deemed unfit to stand trial. A person is deemed “unfit” if a court is satisfied that he or she cannot understand the charges, or struggles to follow court proceedings. This is perhaps understandable given the impenetrable language and alienating formality of modern judicial systems. </p>
<p>“Unfit” defendants are diverted out of the mainstream criminal justice system. They are never convicted of any crime. But that does not mean they walk free. They can be detained indefinitely, in mainstream prisons or secure facilities. Often, they are detained for far longer than any sentence they would have received. </p>
<p>Grave injustices can follow, as the recent high profile cases of <a href="http://www.abc.net.au/news/2012-01-07/marlon-noble-to-be-released-from-wa-jail/3762134">Marlon Noble</a> and <a href="http://www.abc.net.au/radionational/programs/lawreport/story-segment-template/5759618#transcript">Rosie Anne Fulton</a> show. Both were found unfit to stand trial. Noble spent ten years incarcerated for a crime it now seems he didn’t commit. Fulton was detained for 22 months on relatively minor driving charges in the Northern Territory.</p>
<p>According to estimates by <a href="http://www.pwd.org.au/documents/Word/AusUPRFactSheetIndefiniteDetentionFN.docx">People with Disabilities Australia</a> there are at least 100 people detained across Australia in similar circumstances; at least half are Aboriginal or Torres Strait Islander. </p>
<p>Numerous reviews and law-reform agencies have recommended changes to unfitness to plead laws. A recently announced <a href="http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Community_Affairs/Indefinite_Detention">Senate inquiry</a> provides an opportunity for nationally consistent reform. </p>
<h2>Seeking support and equality</h2>
<p>The UN Convention on the Rights of Persons with Disabilities, which Australia has ratified, can help guide reform. The convention promotes a shift away from ideas of “vulnerability” and “specialness” towards equality and accessibility.</p>
<p>From this view, cases like that of Dassey, Marlon Noble and Rosie Anne Fulton are not tragedies of exploitation. They are tragedies of inaccessibility. They are failures of criminal justice systems to cater for everyone. International human rights law – and the fundamental notion of equality before the law – demands “<a href="https://en.wikipedia.org/wiki/Reasonable_accommodation">reasonable accommodation</a>”. This includes appropriate support for people with intellectual disability charged with a crime.</p>
<p>Our new <a href="http://www.socialequity.unimelb.edu.au/projects/unfitness-to-plead-and-indefinite-detention-of-persons-with-cognitive-impairments-addressing-the-legal-barriers-and-creating-appropriate-alternative-supports-in-the-community/">research project</a> sets out to develop such supports. Our team of researchers will partner with legal services to create and evaluate support for accused persons with cognitive disabilities at risk of being deemed unfit to stand trial. This will include a focus on support tailored to the needs of Indigenous people with cognitive disabilities.</p>
<p>Because – when it comes down to it – maybe all Brendan Dassey needed was someone to back him up.</p>
<hr>
<p><em>Read more: <a href="https://theconversation.com/making-a-murderer-why-innocent-people-confess-under-interrogation-53879">Making a Murderer: why innocent people confess under interrogation</a></em></p><img src="https://counter.theconversation.com/content/53957/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Piers Gooding receives funding from the Australian Government Department of Social Services, National Disability Research and Development Research Scheme.</span></em></p><p class="fine-print"><em><span>Anna Arstein-Kerslake receives funding from the Australian Government Department of Social Services, National Disability Research and Development Research Scheme. </span></em></p><p class="fine-print"><em><span>Bernadette McSherry receives research grant funding from the Australian Research Council and the Australian Government Department of Social Services, National Disability Research and Development Research Scheme. </span></em></p><p class="fine-print"><em><span>Louis Andrews is a volunteer with the Human Rights Law Centre. </span></em></p>The most shocking moments of the true crime documentary Making a Murderer depict two police officers gently coaxing a softly spoken teenager to recount his role in a vicious crime. Warning: spoilers ahead.Piers Gooding, Postdoctoral Research Fellow, Disability Research Initiative, The University of MelbourneAnna Arstein-Kerslake, Academic Convenor, Hallmark Disability Research Initiative, The University of MelbourneBernadette McSherry, Foundation Director, Melbourne Social Equity Institute, The University of MelbourneLouis Andrews, Research assistant, The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/193482013-10-22T04:03:02Z2013-10-22T04:03:02ZListen up, Queensland – courts are for justice, politicians are for politics<figure><img src="https://images.theconversation.com/files/33420/original/6t2cp9hs-1382404801.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Queensland attorney-general Jarrod Bleijie has taken decisions about detaining sex offenders in prison after their sentences have been served into his own hands.</span> <span class="attribution"><span class="source">shutterstock</span></span></figcaption></figure><p>There is a good constitutional reason for not allowing politicians to make decisions which result in imprisonment. It’s called <a href="http://www.peo.gov.au/students/fact_sheets/separation_powers_parliament_executive_judiciary.html">the separation of powers</a> and is meant to ensure that politics does not intrude into decisions which deprive people of their liberty. That’s what judges are for.</p>
<p>Yet the Queensland government has done just that. Attorney-general Jarrod Bleijie has taken decisions about detaining sex offenders in prison after their sentences have been served, <a href="http://www.correctiveservices.qld.gov.au/Publications/Corporate_Publications/Reviews_and_Reports/HighRiskoffendersReportJune08.pdf">away from the courts</a> and <a href="http://www.theguardian.com/world/2013/oct/18/qld-sex-offender-law-high-court-challenge">into his own hands</a>. Bleijie will now have the right to put serious offenders behind bars indefinitely. </p>
<p>Somewhat ironically, the <a href="http://www.theaustralian.com.au/news/nation/sex-offender-robert-fardon-released-but-government-says-its-not-over/story-e6frg6nf-1226733115291">release of sex offender Robert Fardon</a> – who was the subject of the High Court case which <a href="http://sydney.edu.au/law/slr/slr30_1/Keyzer.pdf">tested the validity</a> of the legislation and found that making these orders was part of the judicial role – is what spurred Bleijie to take this extreme step. </p>
<p>This may appease some sections of the media but does nothing for the promotion of community safety.</p>
<h2>Mixing politics and justice</h2>
<p>Court decisions are open to public scrutiny in a way that private decision-making is not. Politicians, on the other hand, are notoriously susceptible to pressure from lobby groups and the media. </p>
<p>One of the reasons the High Court approved the Queensland scheme (<a href="http://www.brisbanetimes.com.au/queensland/fardon-to-be-released-20130213-2ec2f.html">Fardon lost the appeal</a> but was later released) was the presence of safeguards such as review and appeal. But there are no avenues for a review or to appeal the decisions under the Queensland model, and so any opportunity to improve or modify the system is lost. It remains to be seen whether the High Court will decide whether the new scheme is <a href="http://heinonline.org/HOL/LandingPage?collection=&handle=hein.journals/meljil7&div=21&id=&page=">constitutionally palatable</a>.</p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/33424/original/s8hjpwsn-1382405074.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/33424/original/s8hjpwsn-1382405074.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=799&fit=crop&dpr=1 600w, https://images.theconversation.com/files/33424/original/s8hjpwsn-1382405074.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=799&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/33424/original/s8hjpwsn-1382405074.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=799&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/33424/original/s8hjpwsn-1382405074.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1004&fit=crop&dpr=1 754w, https://images.theconversation.com/files/33424/original/s8hjpwsn-1382405074.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1004&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/33424/original/s8hjpwsn-1382405074.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1004&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">The whole point of these schemes is community safety, which requires investment in rehabilitation.</span>
<span class="attribution"><span class="source">Image from shutterstock.com</span></span>
</figcaption>
</figure>
<p>In any case, why is the Queensland government fiddling about with the method of determining detention when the real problems are a lack of vision and resources for rehabilitation? </p>
<p>Under this model, people can be detained forever. But for the vast majority of offenders who will be released, where is the attention to the conditions which will maximise their chances of staying offence free?</p>
<h2>Allaying public concern</h2>
<p>The whole dialogue about “sex offenders” increases the gap between media representations and reality. The fact remains that most people, including children, are sexually assaulted by someone they know, not the demonised “paedophile” of the popular media. </p>
<p>A colleague at Legal Aid once commented that the sex offenders’ prison at Long Bay was the most “normal” prison. Sex offenders are the most varied group of men in the prison system, coming from all classes and backgrounds. Another colleague called it the “grandfathers’ gaol”. They are also among the <a href="http://www.sentencingcouncil.vic.gov.au/sites/sentencingcouncil.vic.gov.au/files/recidivism_of_sex_offenders_research_paper.pdf">least likely</a> to re-offend.</p>
<p>In the <a href="http://psycnet.apa.org/journals/law/4/1-2/505/">United States</a> and Canada, sex offenders are often detained post-sentence by way of civil commitment laws. In other words, they have been recast as mentally ill. Most sex offenders are not mentally ill, even in the popular meaning let alone the more restricted medico-legal meaning. But the word “paedophile” has taken on a popular meaning beyond the medical diagnosis. </p>
<p>Uncertainties about psychiatric diagnosis are magnified when the outcome is imprisonment. These orders are based on speculative evidence (the risk of future offending) and so it is near to impossible to evaluate their efficacy – as they purport to prevent potential harm.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/33421/original/r4xjyr3z-1382404897.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/33421/original/r4xjyr3z-1382404897.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/33421/original/r4xjyr3z-1382404897.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/33421/original/r4xjyr3z-1382404897.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/33421/original/r4xjyr3z-1382404897.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=501&fit=crop&dpr=1 754w, https://images.theconversation.com/files/33421/original/r4xjyr3z-1382404897.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=501&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/33421/original/r4xjyr3z-1382404897.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=501&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Sex offenders are the most varied group of men in the prison system.</span>
<span class="attribution"><span class="source">Image from shutterstock.com</span></span>
</figcaption>
</figure>
<p>Australian jurisdictions have chosen to bypass the strict medical model, probably due to the enormous resource implications for a mental health system already stretched beyond capacity. Western Australia and Queensland have indefinite sentences for life sentence offences. But there are also problems with labelling offenders under “dangerous predator” laws – rehabilitation becomes more difficult when a fixed deviant identity has been imposed. </p>
<p>The title of Deidre Greig’s book sums up the dilemma: <a href="http://books.google.com.au/books?id=hKLM4tyF7JwC&pg=PA230&lpg=PA230&dq=neither+mad+not+bad&source=bl&ots=IeLNBVPkzB&sig=iWtvRl5Sg_CTyR2oh50WXm7aC24&hl=en&sa=X&ei=8WtjUuCzKM2TiAfG0oC4BQ&ved=0CGcQ6AEwBw#v=onepage&q=neither%20mad%20not%20bad&f=false">Neither Bad nor Mad</a>. </p>
<h2>Protecting the community</h2>
<p>It’s important to remember that the whole point of these schemes is community safety. While locking people away may allay concerns in the short term, it creates more problems than it solves, due to the criminogenic or crime-producing nature of imprisonment. </p>
<p>Much of the evidence from prisoners in my forthcoming study, which included several high-risk sex offenders, indicates there are systemic problems with accessing rehabilitation in prison, not to mention the poor quality of the services. </p>
<p>The fact is that our so-called “correctional” system provides minimal opportunities for the kind of internal, personal change which is expected of offenders. Even those who accept responsibility for their offending are often alienated and frustrated by the lack of opportunities for rehabilitation.</p>
<p>Putting aside concerns about the <a href="http://heinonline.org/HOL/LandingPage?collection=&handle=hein.journals/meljil7&div=21&id=&page=">fundamental human rights shortcomings of preventive detention</a>, the community will be sold short if these schemes do not provide a well-resourced, well-thought-out rehabilitative program. There is next to no sentence management in Australian prisons and no attention to whether the processes and procedures are in fact complying with and contributing to the aims of the sentence.</p>
<p>Those advocating rehabilitation do not necessarily do so from sympathy for the offender but from the knowledge that inducing them to adopt a law-abiding lifestyle is the best way to protect the community. We need an approach to intractable offenders that relies on evidence of good and successful practice. </p>
<p>To think that concentrating the power to make decisions about serious offenders into the hands of a politician will improve community safety is misguided. Judges are clearly in the best position to assess the evidence and make decisions in a transparent, publicly accountable manner.</p>
<p>The polarised, irrational and unhelpful discourse of victims versus offenders encouraged by these moves does nothing for community safety. </p><img src="https://counter.theconversation.com/content/19348/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Maggie Hall does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>There is a good constitutional reason for not allowing politicians to make decisions which result in imprisonment. It’s called the separation of powers and is meant to ensure that politics does not intrude…Maggie Hall, Adjunct Lecturer, UNSW, Lecturer, School of Social Sciences and Psychology, Western Sydney UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/155042013-07-02T04:38:30Z2013-07-02T04:38:30Z‘Unfit to plead’: why does the law jail those with intellectual disabilities indefinitely?<figure><img src="https://images.theconversation.com/files/26376/original/dds65t8f-1372386775.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">People with intellectual disabilities are detained indefinitely under WA laws.</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>People with intellectual disabilities who are found to be <a href="http://www.lawhandbook.org.au/handbook/ch03s01s04.php">“unfit to plead”</a> are still locked away <a href="http://www.theaustralian.com.au/national-affairs/state-politics/medieval-law-jails-mentally-ill-indefinitely/story-e6frgczx-1226668482601">for years on end</a> in Western Australia. Similarly, in the Northern Territory, this detention occurs in prison, usually in maximum security settings. </p>
<p>In other states such as Queensland, Victoria and Tasmania, a person who has been found unfit to plead may be detained in a secure psychiatric facility. </p>
<p>In 1987, <a href="http://hodge-naito.com/mcsherry-yates/#more-438">Gregory Yates</a>, a 27-year-old man with an intellectual disability was sentenced to seven years imprisonment in WA for the sexual assault of a young girl. </p>
<p>He served his time for the offence, but due to a judicial order under section 662 of the <a href="http://www.austlii.edu.au/au/legis/wa/consol_act/ccaca1913252/notes.html#appendixb">Criminal Code (WA)</a>- a section that has since been repealed - Yates was detained “at the Governor’s pleasure”. He remained in prison for 25 years. </p>
<p>Earlier this year, the High Court put an end to the <a href="http://www.austlii.edu.au/au/cases/cth/HCA/2013/8.html">ongoing imprisonment</a> of Yates, after evidence before the sentencing judge that suggested he posed a “danger” to the public was held to be insufficient.</p>
<p>Some may argue that due to the severity of his offence, Yates should have been jailed for longer than seven years. But 25 years in prison seems an inordinately long time, given that those convicted of murder can be paroled in less time. </p>
<p>This begs the question: would Yates have been jailed for so long if he didn’t have an intellectual disability?</p>
<p>In a similar case, a man named <a href="http://www.abc.net.au/rampup/articles/2011/12/09/3387845.htm">Marlon Noble</a> was imprisoned for over ten years without conviction in Western Australia. While Noble has now been released into the community, he is still subjected to severe restrictions on his freedom. Noble is <a href="http://www.abc.net.au/news/2013-05-08/marlon-noble-attends-film-of-incarceration/4676620">attempting to have these lifted</a>.</p>
<p>Those with intellectual disabilities form a disproportionately large cohort of prisoners. </p>
<p><a href="http://www.ncbi.nlm.nih.gov/pubmed/20339132">One meta-study</a> has estimated that 60% of prisoners in the United States, United Kingdom, Australia and New Zealand suffer from “traumatic brain injury”, defined as a brain injury acquired after birth. </p>
<p>Those with intellectual disabilities may be detained in prison far longer than those without such disabilities. This is either through indefinite detention provisions or via laws that enable them to be considered unfit to plead.</p>
<p>There is a current <a href="http://www.pwd.org.au/systemic/adjc.html">campaign</a> that highlights the preventive detention of aboriginal people with intellectual disabilities. Presently, a <a href="http://www.abc.net.au/lateline/content/2012/s3556926.htm">High Court challenge</a> to the constitutionality of laws surrounding indefinite detention of those with intellectual disabilities is also being prepared.</p>
<p>The detention of individuals with intellectual disabilities on the basis that they may pose a risk to others raises substantial questions concerning human rights.</p>
<p>The <a href="http://www.un.org/disabilities/convention/conventionfull.shtml">Convention on the Rights of Persons with Disabilities</a> (CRPD), which Australia ratified in July 2008, clarifies the obligations of states’ parties to promote and ensure the rights of a person with disabilities. It also sets out the steps that should be taken to ensure equality of treatment. It goes into much more detail than previous general human rights conventions concerning action on prohibiting discrimination. </p>
<p>Neither “disability” nor “persons with disabilities” is defined in the CRPD. However it does state that the latter term includes: </p>
<blockquote>
<p>…those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.</p>
</blockquote>
<p>Additionally, the CRPD requires Australia to ensure that persons with disabilities: </p>
<blockquote>
<p>…are not deprived of their liberty unlawfully or arbitrarily, and that any deprivation of liberty is in conformity with the law, and that the existence of a disability shall in no case justify a deprivation of liberty.</p>
</blockquote>
<p>Even if this provision is interpreted to mean that the “the existence of a disability alone” does not justify such laws - but “dangerousness” does - detention without any attempt to treat or otherwise rehabilitate those with intellectual disabilities raises the issue of cruel and unusual punishment, as mentioned in the CRPD.</p>
<p>There is also the issue of risk assessment. The evidence at Gregory Yates’ sentencing hearing would today be considered <a href="http://www.amazon.com/Dangerous-People-Prediction-International-Perspectives/dp/0415884950">inadequate</a> for the purposes of indefinite detention. </p>
<p>This is due to the rise of risk assessment instruments and the better training of expert witnesses in this field. However, risk assessment evidence has been <a href="http://www.routledge.com/books/details/9780415632393/">criticised on a number of grounds</a>, as has the indefinite detention on the basis of risk. Both concerns raise numerous procedural and policy issues.</p>
<p>The involuntary detention of those with intellectual disabilities due to the risk they pose to others may be viewed as discriminatory. Those without mental or intellectual disabilities are not, as a general rule, indefinitely detained on this basis. </p>
<p>Even if the High Court finds that such schemes are constitutional, there is a need to consider the human rights implications of indefinitely detaining those suffering a mental illness. An exploration of alternative options should be conducted to ensure those with intellectual disabilities are treated equally, as is mandated by the CRPD.</p><img src="https://counter.theconversation.com/content/15504/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Bernadette McSherry has received funding from the Australian Research Council. Her book, Managing Fear: The Law and Ethics of Preventive Detention and Risk Assessment, will be published by Routledge New York in August.</span></em></p>People with intellectual disabilities who are found to be “unfit to plead” are still locked away for years on end in Western Australia. Similarly, in the Northern Territory, this detention occurs in prison…Bernadette McSherry, Foundation Director, Melbourne Social Equity Institute, The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/144982013-05-21T20:36:47Z2013-05-21T20:36:47ZAs a High Court challenge looms, are there alternatives to Australia’s indefinite detention policy?<figure><img src="https://images.theconversation.com/files/24168/original/vwzybsdq-1369098691.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Another High Court challenge to the Gillard government’s indefinite detention of ‘legal black hole’ refugees has experts calling for alternatives.</span> <span class="attribution"><span class="source">AAP/Jeremy Piper</span></span></figcaption></figure><p>The Gillard government is <a href="http://www.theage.com.au/opinion/political-news/despair-refugee-returns-to-court-20130517-2js6f.html">facing</a> another High Court challenge to its indefinite detention of the <a href="http://www.smh.com.au/opinion/political-news/rallies-seek-release-of-55-refugees-in-limbo-20130508-2j75r.html">55 refugees</a> to have received adverse security assessments from ASIO.</p>
<p>These continuing legal troubles, along with the human cost, show the need to rethink the assumption that detention is the only way to address this perceived security risk.</p>
<h2>The problem</h2>
<p>These individuals are often referred to as the <a href="http://www.amnesty.org.au/refugees/comments/30148/">“legal black hole”</a> refugees. They have had their asylum claims assessed and are certified as genuine refugees, but have then been deemed security risks by ASIO. Deportation is untenable due to the risk of torture and death, so currently they remain detained for potentially the rest of their lives.</p>
<p>This is no exaggeration, as one adversely-assessed refugee has <a href="http://news.smh.com.au/breaking-news-national/bowen-defends-detention-of-refugees-20111027-1mktr.html">committed suicide</a> and <a href="http://www.smh.com.au/national/asio-blocks-child-refugee-on-security-grounds-20120103-1pjk3.html">several more</a> have attempted to. The human cost of our current approach was again exposed when a nine year old boy held in immigration detention was <a href="http://www.smh.com.au/opinion/political-news/detained-child-has-ptsd-symptoms-20130425-2ihfx.html">recently revealed</a> to be so traumatised that he had been shoving sticks in his ears. The boy is in detention because his mother, <a href="http://edition.cnn.com/2013/01/15/world/asia/australia-ranjini-indefinite-detention/">Ranjini</a>, is one of these suspected security risks.</p>
<p>The <a href="http://media.smh.com.au/news/national-times/review-asio-assessments-4198988.html">political debate</a> so far has revolved around the effectiveness of the recently established <a href="http://www.ag.gov.au/NationalSecurity/Counterterrorismlaw/Pages/IndependentReviewofAdverseSecurityAssessments.aspx">review mechanism</a> for ASIO’s assessments.</p>
<p>However, the greater issue is that even if the adverse security assessments are well-founded, indefinite detention is both unjust and unnecessary.</p>
<p>An adverse assessment from ASIO is not comparable to a criminal conviction. Rather, it is an intelligence-based predictive judgement that someone <a href="http://rightnow.org.au/topics/asylum-seekers/what-do-asios-adverse-security-assessments-of-refugees-actually-mean/">might pose</a> a security risk. ASIO assessments are an important part of the screening process for visa applications, but it does not follow that an adverse finding necessitates detention.</p>
<h2>Alternative approaches</h2>
<p>There are many other ways of addressing the various security risks the individuals may pose, most of which could be introduced without changing current laws.</p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/24172/original/h6vy46s5-1369099259.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/24172/original/h6vy46s5-1369099259.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/24172/original/h6vy46s5-1369099259.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/24172/original/h6vy46s5-1369099259.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/24172/original/h6vy46s5-1369099259.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=502&fit=crop&dpr=1 754w, https://images.theconversation.com/files/24172/original/h6vy46s5-1369099259.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=502&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/24172/original/h6vy46s5-1369099259.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=502&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Labor MP Daryl Melham has suggested that in some cases electronic tagging could be used as a possible alternative.</span>
<span class="attribution"><span class="source">AAP/Lukas Coch</span></span>
</figcaption>
</figure>
<p>They could be released into the community on conditional visas so that they could be returned to their home countries, if the human rights situation sufficiently improves. Once released, several options are available, depending on the threat posed.</p>
<p>It may be that a level of surveillance would suffice for some of these individuals. For others, though, certain restrictions on liberty short of detention may be necessary.</p>
<h2>Addressing support for violence overseas</h2>
<p>The <a href="http://www.smh.com.au/opinion/political-news/asio-justifies-black-hole-for-refugees-20130420-2i72o.html">available information</a> suggests that most of the adverse assessments are based on alleged support for the defeated <a href="http://www.cfr.org/terrorist-organizations/liberation-tigers-tamil-eelam-aka-tamil-tigers-sri-lanka-separatists/p9242">Tamil Tigers</a> in Sri Lanka.</p>
<p>Support for the Tamil Tigers is a legitimate security concern. Australia has an international obligation to prevent its territory being used as a base for violence against other countries, but addressing this does not require detention.</p>
<p>If individuals continued to provide support for the Tamil Tigers (or its subsequent incarnations) while in Australia, security agencies already have the legal power to take action. This was demonstrated when <a href="http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VSC/2010/148.html">three Melbourne men</a> were convicted in 2009 for providing the Tamil Tigers with money and electronic components.</p>
<p>Another possibility, if necessary, is to proscribe the Tamil Tigers as a terrorist organisation. This would not prevent former Tamil Tigers being allowed into the community, but would provide a clear legal basis to take action if they remained involved with the organisation while in Australia.</p>
<h2>Addressing internal risks</h2>
<p>If some of the individuals are assessed to pose a risk of terrorist violence within Australia (though current reporting does not suggest this) other options are available. One possibility is to use control orders, which can impose all sorts of restrictions on who someone can contact, where they can travel, and ensure parole-like requirements to report.</p>
<p>In fact, Australia’s control order legislation was <a href="http://www.coagctreview.gov.au/submissions/Documents/GilbertTobinCentreofPublicLaw.pdf">modelled on the UK’s</a>, which was specifically introduced to deal with this sort of situation. In 2004, the UK House of Lords <a href="http://www.guardian.co.uk/commentisfree/libertycentral/2009/sep/07/control-orders-libya">ruled that</a> suspected terrorists who could not be deported due to risks of torture could also not be detained indefinitely.</p>
<p>As the UK faced obstacles in prosecuting these suspects (its terrorism legislation was narrower in scope than Australia’s at the time), they introduced <a href="http://www.legislation.gov.uk/ukpga/2005/2/contents#pb3-l1g14">control orders</a> in March 2005. A 2012 <a href="http://terrorismlegislationreviewer.independent.gov.uk/publications/control-orders-2011?view=Binary">independent review</a> of the UK’s control orders found that they were effective at addressing the terrorist threat from the individuals they were used against, and that - if anything - they had been overly restrictive.</p>
<p>The UK was dealing with people against who there was compelling evidence of their terrorist involvement (often with al-Qaeda) and of direct danger to UK citizens. There is no indication that Australia’s refugees with suspected Tamil Tiger links pose an equivalent threat.</p>
<p>If control orders are not possible for some individuals (for example, if the intelligence is too sensitive) there are other means to apply any necessary restrictions. University of Sydney’s Professor of International Law Ben Saul has <a href="http://newmatilda.com/2012/10/04/asio-judge-jury-and-executioner">noted that</a>:</p>
<blockquote>
<p>…the Minister for Immigration can also order “community detention” on certain conditions, which could conceivably include restrictions on residency or communications, reporting obligations and so on — much like a de facto control order.</p>
</blockquote>
<p>Labor MP Daryl Melham has <a href="http://newmatilda.com/2012/10/04/asio-judge-jury-and-executioner">suggested that</a> in some cases, electronic tagging could be used.</p>
<h2>Towards a solution</h2>
<p>The key principle is that the options chosen should be tailored to the specific security risk each individual is assessed to pose. Independent oversight, as well as periodic review, could also help ensure that any restrictions on liberty are only maintained as long as necessary.</p>
<p>There is no ideal solution, but a policy that addresses legitimate security concerns without maintaining the current inhumane approach is certainly achievable, and has been called for by a <a href="http://www.smh.com.au/opinion/political-news/call-for-rethink-on-refugee-security-threats-20121012-27i01.html">range of experts</a>, the <a href="http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=immigration_detention_ctte/immigration_detention/report/index.htm">Joint Select Committee on Australia’s Immigration Detention Network</a> and the <a href="http://www.ombudsman.gov.au/files/suicide_and_self-harm_in_the_immigration_detention_network.pdf">Commonwealth Ombudsman</a>.</p>
<p>There are plenty of ways to protect national security without resorting to indefinite detention.</p><img src="https://counter.theconversation.com/content/14498/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Andrew Zammit is employed by the Australian Research Council project: Understanding Radicalisation, De-radicalisation and Counter-radicalisation from an Australian Perspective, which is partnered with Victoria Police, Australian Federal Police, Department of Premier and Cabinet and Corrections Victoria.</span></em></p>The Gillard government is facing another High Court challenge to its indefinite detention of the 55 refugees to have received adverse security assessments from ASIO. These continuing legal troubles, along…Andrew Zammit, Researcher at the Global Terrorism Research Centre, Monash UniversityLicensed as Creative Commons – attribution, no derivatives.