“Unjust punishment” of WA’s indefinite detention laws exposes the need for a human rights law

But Garlett was convicted of robbery; He stole $20 and a necklace. The appeal asked the court to distinguish robbery from serious child sexual offenses or terrorism.

The majority said this was a question to Parliament.

Not every judge agreed. Judge Gageler disagreed, asking if robbery “suffices to warrant a court’s authority to order preventive detention, it must be asked: what crime is it not?”

Judge Gordon, who also disagreed, gave the majority a strong reply. Her honor ruled that exceptions to the basic principle of liberty should only apply to the most serious cases. Incorporating robbery “comes at a high cost” to “the core values” of our constitutional system.

Even one of the judges in the majority had his doubts.

Noting that the law “could potentially lead to the incarceration of one in seven of Western Australia’s total prison inmates for crimes they did not commit”, Judge Edelman wondered if the law “could ever be morally justified”.

Nonetheless, he took the view that the Constitution did not prevent the Parliament of Western Australia from imposing “unjust punishments”.

The Garlett High Court case demonstrates the urgent need for a federal human rights law and even constitutional protection of human rights through a charter or bill of rights.

Indefinite detention, such as that sought in relation to Garlett, is a form of arbitrary detention. It conflicts with the International Covenant on Civil and Political Rights (ICCPR) that Australia signed in 1972.

It is also inconsistent with the government’s commitment to close the gap and reduce incarceration of indigenous people.

In WA, the government says this legislation will contribute to the continued detention of potentially 700 more adult Aboriginal prisoners.

We know that Aboriginal incarceration continues to rise, as does child abduction and suicide rates, and they are all interrelated.

It has been over 30 years since the Royal Commission into Aboriginal Deaths in Custody published its final report. The commission made many recommendations, the most important being that the detention of Aboriginal people should only be used as a last resort.

There were misleading claims by the previous federal government that the Royal Commission’s recommendations were overwhelmingly implemented. This WA Act, along with the Mandatory Incarceration Acts (aka “Three Strikes”), demonstrates why incarceration rates for Native Americans are so high in WA.

The Australian Law Reform Commission, in the Pathways to Justice Inquiry, called for a national justice reinvestment body to reduce incarceration of Aboriginal people. We need that now more than ever.

In contrast, Justice Gordon warned that other states and territories could copy this legislation. We can not permit that. Indigenous people’s participation in the justice system is fundamental to the justice and management of Indigenous people’s imprisonment.

Discussions on diversity of rights must include indigenous peoples.

Recently, Canadian President Justin Trudeau responded to long-standing criticism of Canada’s Supreme Court’s exclusion of Indigenous Peoples by announcing the appointment of Michelle O’Bonsawin of the Odanak First Nations to the Supreme Court.

Two posts will become vacant in our High Court over the next 18 months.

The appointment of an Indigenous Court will help ensure justice for Indigenous people whose experiences of racism and systemic bias have been neglected in the legal system for too long.

https://www.smh.com.au/national/unjust-punishment-of-wa-s-indefinite-detention-laws-lay-bare-need-for-human-rights-bill-20220918-p5bj1p.html?ref=rss&utm_medium=rss&utm_source=rss_national “Unjust punishment” of WA’s indefinite detention laws exposes the need for a human rights law

Joel McCord

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