A tougher preventative detention regime aimed at jailing recently freed immigration detainees with serious offences has been slammed by experts as a dangerous potential breach of human rights.
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Detainees assessed by a state court to pose an unacceptable risk would be put back behind bars, under laws passed late Wednesday night.
The maximum length of the detention order is three years but would be reviewed annually.
The laws were put in place after the High Court ruled indefinite immigration detention was unlawful and unconstitutional, resulting in almost 150 detainees being released in the last month.
The government maintains the latest legislation, modelled on counter-terrorism laws, is aimed at protecting community safety from violent offenders.
Four former detainees have been charged with fresh offences since being released during the past week.
But Daniel Ghezelbash, deputy director of the Kaldor Centre for International Refugee Law at UNSW, argues "the differentiated treatment based on visa status" may amount to a form of punishment.
"There's no precedent that I'm aware of in Australia, or anywhere in the world, for preventative detention orders to be made that take visa status to be a factor," he told AAP.
The Kaldor Centre served as amicus curiae (friend of the court) to give expertise in the landmark NZYQ case in which High Court judges unanimously ruled on November 8 indefinite detention of non-citizens was unlawful and unconstitutional.
"My concern is primarily around the fact that assessments are not being made based purely on the risk a person poses to the community, but also their visa status," he said.
Dr Ghezelbash pointed to Australia's long history of detaining refugees and migrants as being used as a pre-text to push stringent conditions that impinge on human rights.
"The danger is there's a long history of this happening both in Australia and abroad where non-citizens are kind of a testing ground for pushing limitations on personal liberty, that then get normalised and expanded to the rest of the community," he said.
He raised concerns about how the orders penalise refugees and asylum-seekers in the long run if charges overseas are taken into account in their criminal history.
"Refugees and people seeking asylum are often targeted as a form of political persecution in the courts of their home countries with trumped up charges,'' Dr Ghezelbash said.
Griffith University human rights law professor Sarah Joseph said the legislation was not effectively protecting community safety.
"It's arguable that such legislation is not protective because it applies to too few people and it's discriminatory," she said.
"If it is deemed to be punitive, then it's probably going to be unconstitutional."
She said several state-based preventive detention regimes had been found to be in breach of international human rights law and had been challenged in the High Court as potentially breaching the separation of powers.
She slammed "inherent racism" of the preventive detention orders targeting non-citizens.
"I do not know of any evidence that non-nationals in that respect are more likely to reoffend or worse, or more of a danger to our society than than Australian people," Professor Joseph said.
She said the laws assumed "aliens (non-Australians) are somehow more dangerous when they've committed a crime compared to an Australian".
Prof Joseph warned the laws could create a two-tier system of detention.
"I don't think it's great for the fabric of the country that we keep on wanting to extend models of detention despite the fact that they breach human rights and in some instances, breach the constitution," she said.
Australian Associated Press
