Labor veteran joins criticism over proposed mandatory sentencing changes after high court decision
Labor veteran Kim Carr has criticised the government’s “deeply disturbing” decision to sign up to mandatory minimum sentences in a deal to pass bridging visa changes with Coalition support.
The move – announced by the acting prime minister, Richard Marles, on Thursday, contradicts Labor’s national platform – which states that the party “opposes mandatory sentencing” because it “undermines the independence of the judiciary, leads to unjust outcomes and is often discriminatory in practice”.
The bridging visa conditions bill imposes curfews and ankle bracelets on those released, with criminal penalties for breach of certain conditions.
Carr added his voice to outcry from refugee advocates, legal experts and the Greens, who have condemned Labor’s legislation which was introduced in response to the high court decision that indefinite detention is unlawful where the non-citizen has no prospect of deportation.
The bill passed on Thursday evening, after Labor agreed to remove key safeguards of the original legislation, including that electronic monitoring by ankle bracelets and curfews will be imposed on a case-by-case basis.
Under an amendment moved by the Coalition and passed with government support, breaches of visa conditions will be punishable by mandatory minimum sentences of one year in prison, with each day of breach considered a separate offence.
Carr told Guardian Australia that it was an “extremely important” element of Labor’s traditional policy “not to support mandatory sentencing because it undermines the independence of the judiciary”.
It was “profoundly disappointing” that legislation had been rushed through in a way that “undermines the fundamental principle of parliamentary accountability”, he said.
Carr suggested the government had acted “in a state of panic to abandon our own principles when we have yet to hear why the high court made the decision that it did”.
The former senator noted that the immigration minister, Andrew Giles, had said “further responses” may be required when the court’s reasons are out, but Carr questioned “the limit of these responses, given the circumstances that have arisen this week” in parliament. “It won’t surprise me if there is further judicial action on this,” he said.
The Greens senator Sarah Hanson-Young told the Senate the deal was an “absolute disgrace”, accusing the major parties of “collusion” to ram through the bill.
“This is all under the whip of Peter Dutton, the leader of the nasty party,” she said, but withdrew the comment.
Even before the deal, Greens senator Nick McKim had warned the conditions on visas amount to “detention by another name” because curfews are “effectively house arrest” and electronic surveillance is “electronic detention”.
Greg Barns, a spokesperson for the Australian Lawyers Alliance, said that “many of the people recently released are refugees who have already suffered years of indefinite detention. “Some have committed crimes, but the key point is that they have already served their sentence,” he said.
“The conditions to be imposed are more severe than those which are imposed on people who are on parole generally.”
Related: Immigration detention explainer: how is Labor responding to the landmark high court ruling?
He described the requirement to inform the government of interstate travel as “unduly harsh” and the proposed curfew between 10pm and 6am as “futile”.
“The legislation must include independent review of the use of any type of monitoring as there will be people being monitored who don’t need to be monitored.”
Barns said it was “discriminatory” to target this cohort with criminal offences for breach of visa conditions, arguing breaches should be dealt with by an independent review panel equivalent to a parole board “rather than making the breach a criminal offence”.
The Law Council’s president, Luke Murphy, said “any penalties applicable should be proportionate to the seriousness of the conduct”.
“The imposition of restrictions on a person’s liberty to pre-empt and prevent criminal activity is only legitimate as an extraordinary and appropriately tailored scheme.”
Where a law “distinguishes between different classes of persons, there should be a demonstrable and rational basis for that differentiation”, he said.
“[The Law Council] is not aware of evidence demonstrating that a person without citizenship is more likely to reoffend than a person with citizenship.”
