Human rights lawyer Dr Hannah McGlade is assisting a challenge to a Western Australian law that allows Aboriginal people to be detained indefinitely.
The High Risk Serious Offenders Act WA 2020 passed into law in June last year. The act allows the WA Supreme Court to keep people behind bars after their prison sentence ends.
The court case, mounted by Roe Legal Services, centres on Noongar man Peter Garlett, who has served three years and six months prison time for a 2017 aggravated armed robbery.
Despite it being Garlett’s first offence as an adult, it’s yet to be assessed under the High Risk Serious Offenders legislation if he should be indefinitely detained.
Dr McGlade, an Associate Professor at Curtin University Law School, said the legislation sets an unusually low bar for indefinite detention.
“It is very shocking and quite wrong, that we would as a society say that people who have committed [robbery] should never be released from prison,” she said.
“There are many other charges [in the legislation] that similarly, you would have to question why they would be considered such a high-risk offender.”
Roe Legal Services principal Paul Sheiner has written to Federal Attorney General Michaelia Cash to notify her of the challenge.
The letter claims the laws are incompatible with chapter 3 of the Australian Constitution because they “impose upon the institutional integrity” of the WA Supreme Court.
Sheiner argues that the Act breaches the Racial Discrimination Act and so will lead the Supreme Court to make the same breaches.
Under the Act, the court is required to consider prior imprisonment, convictions and social disadvantage when making a decision about whether to indefinitely detain a person; conditions that disproportionately affect First Nations Peoples.
“At this point, we want to see the law declared invalid,” Dr McGlade said.
“It is racial discrimination against Aboriginal people who experience higher rates of incarceration, of mental health distress, of poverty, and other factors that will then render them vulnerable to imprisonment. Those factors will be relied upon in risk assessment tools.”
Dr McGlade said she believes the law is unconstitutional.
“It’s a principle of law that a person who receives a sentence must be released after the end of that sentence,” she said.
“While there have been some exceptions made for people who are considered continuing high risk–people who are believed to be risk terrorists or risk child sex offenders–to then extend it to people that they say might be a risk because they’ve committed robbery offences has gone too far.
“It’s against our human rights commitments. It’s a form of cruel and inhumane treatment to say to a prisoner ‘you have no release date’. It’s very, very cruel.”
McGlade said the law’s racially discriminatory aspects also put it at odds with Australia’s UN human rights obligations.
“This is not an optional system that we engage with international law and the UN,” she said.
“It’s quite a shocking law, passed at a time when our government fully understands the imperative of reducing Indigenous incarceration.”
Western Australian Attorney General John Quigley declined to comment while the matter is before the court.
By Sarah Smit