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Draconian laws in West highlight need for human rights law in SA

By Socrates Giatrakos, Law Student & Rights Resource Network SA Volunteer

“The Garlett High Court case shows the urgent need for a federal Human Rights Act … In Western Australia this law will contribute, according to the government’s own advice, to the further incarceration of possibly 700 more Aboriginal adult prisoners.”

Peter Garlett is a 23-year-old Noongar man from Western Australia. He has a young daughter, and partner. In July 2019 Mr Garlett was sentenced to three years and six months imprisonment for stealing a pendant necklace and $20 cash. This was his first adult offence. At the end of his sentence, it was expected that he would be released from prison, but the Western Australian government tried to stop this. To prevent him from leaving prison, they relied on the newly passed High Risk Offenders Act 2020 (WA).

Overview of the High-Risk Offenders Act 2020 (WA).

The legislation, amongst other things, creates an order called a “restriction order”. This order is broken into two separate orders, one which is called a “continuing detention order”. A continuing detention order requires an offender to be held in an indefinite term of custody for control, care, or treatment.

To get a “restriction order” the police must prove that an offender is a “high risk serious offender”. In general, a “high risk serious offender” is someone the police can prove has an “unacceptable risk” of reoffending.

Therefore, if the court is satisfied that there is an “unacceptable risk” that a prisoner willreoffend, then the court must make a “restriction order”. Under this system a prisoner could be held in custody for an indefinite period because there is a risk that they may reoffend.

Mr Garlett’s High Court Challenge

On 29 July 2021 Western Australia applied for a restriction order in relation to Mr Garlett. He subsequently challenged the decision stating that parts of the High-Risk Offenders Act 2020 (WA) were unconstitutional.

The challenge went all the way to the High Court. The case rested on whether parts of the legislation “confer[ed] upon a State Supreme Court a function which substantially impairs the institutional integrity of such a court.”

The High Court held that the legislation was not unconstitutional. Therefore, state governments across the country have the right to hold potential reoffenders in custody indefinitely.

Human Rights Issues

What Mr Garlett’s case shows is that there are serious gaps in human rights protections in Australia. According to Hannah McGlade and Harry Hobbs, indefinite detention such as the one sought for Mr Garlett is a form of arbitrary detention. This form of detention is inconsistent with the International Covenant on Civil and Political Rights, which Australia signed in 1972. In addition, in the Royal Commission into Aboriginal Deaths in Custody the Commissioner stated that Aboriginal incarceration should only be a last resort. The Garlett case shows that the High Risk Offenders Act will operate in a manner that does not necessarily give effect to this recommendation.

Human Rights Act

A South Australian Human Rights Act could provide various protections to prevent arbitrary detention from occurring in the state. It could codify the International Covenant on Civil and Political Rights to ensure that South Australians have the right to be protected from arbitrary detention. In addition to this form of protection, a Human Rights Act could also be used to implement a First Nations Voice to Parliament that operates in South Australia to make representations on laws in SA.

There is currently debate regarding implementing a Voice to Parliament in the Federal Constitution. However, a Voice to Parliament could also be implemented in South Australia. The state government has appointed a Commissioner for First Nations Voice to begin the process of incorporating a Voice to Parliament in South Australia. If a South Australian Voice were to replicate the Indigenous Law Centres proposed offer, it would allow the Voice to make representations to Parliament on matters relevant to Aboriginal and Torres Strait Islander peoples. A South Australian Voice to Parliament could make representations on any South Australian legislation that might try to replicate the High Risk Offenders Act. These representations could bring the issues of the High Risk Offenders Act into the spotlight, and make Parliament politically accountable.

Conclusion

The Garlett case illustrates some of the serious issues regarding human rights protections in Australia. A South Australian Human Rights Act could provide various protections, and close some of the gaps.

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