Lawyers condemn plans to formalise arbitrary detention in Australia

4th Nov 2016

The Parliamentary Joint Committee on Intelligence and Security has today published a report recommending that Australia adopt the most draconian counter-terrorism laws in the world, the Australian Lawyers Alliance (ALA) said today.

ALA spokesperson and barrister Greg Barns said that the Criminal Code Amendment (High Risk Terrorist Offenders) Bill would formalise arbitrary detention in Australia and was likely to be unconstitutional.

“This legislation represents a radical change to the criminal law. It will ask judges to predict the future and allow people to be detained indefinitely out of a fear they will commit non-violent crimes. As former High Court Justice Michael Kirby said in 2005, laws of this nature have their origins in Nazi Germany.

“The Committee is aware of the legally dubious nature of this law. Its first recommendation is that the final version of the Bill be reviewed by the Solicitor-General or equivalent”, said Mr Barns.

The ALA believes that the Bill may not survive a High Court challenge, and is inherently flawed. There is no need for a system of continuing detention orders in Australia.

“The constitutional problems with this Bill are clear – it is asking courts to act as bureaucrats and not judges because they are imposing a penalty on people where there can be no finding of criminal guilt. You can’t be found guilty beyond reasonable doubt for something that has not happened, but under this Bill you can be detained anyway,” said Mr Barns.

“Everyone wants to ensure that Australia is safe from terrorism. Instituting arbitrary detention and legislating away fundamental rights, however, is not the way to achieve that,” said Mr Barns.

The ALA submission to the Committee can be found here.


Tags: Human rights Criminal justice terrorism Greg Barns