High Court to Determine Constitutionality of WA’s High Risk Offenders Laws

The High Court is hearing a challenge to the constitutionality of the McGowan government’s High Risk Offenders Act 2020 (WA) (the Act), which has been labelled “inherently racist” and is “already impacting vulnerable young Aboriginal men”.

The challenge set to go before the court on Thursday has been raised in relation to Peter Garlett, a Noongar man in his 20s, who, in 2017, was sentenced to three years and six months on conviction of aggravated robbery.

Yet, despite having served his full sentence, which ended last October, the man is still languishing in prison. And the WA state wants to keep him there “for an indefinite term”, as it seeks to have the young father determined a high risk offender and placed under a continuing detention order.

Roe Legal Services principal Paul Sheiner challenged the Act and its application in regard to Garlett in the WA Court of Appeal in October, claiming that the laws undermine the institutional integrity of the WA Supreme Court, making them incompatible with chapter 3 of the Australian Constitution.

WA Justice Michael Corboy, however, didn’t agree, as he determined they are constitutional.

So, Roe Legal is moving to see this ruling overturned in the highest court with Grant Donaldson SC providing counsel.

Extralegal

Section 7 of the Act permits the High Risk Offenders Board to assess whether an inmate convicted of a serious offence is high risk, and from there, decide if their incarceration should be extended for an undetermined period or they warrant extra supervision in the community for a stipulated time.

These laws took effect on 9 July last year. Then just 20 days later, the state applied for a determination as to whether Garlett should be placed on a restriction order, under section 48 of the Act, which then requires the Supreme Court to decide on extended detention or supervision.

High risk offender laws operate in a number of Australian jurisdictions, but WA’s take the cake in terms of basically permitting indefinite detention. In order for a continuing detention order to be brought to an end, a court must actively revoke it.

The case that Roe Legal will be making in the High Court, which Corboy disagreed with, is that these laws contradict the Kable principle, which provides that a state cannot enact a law that bestows a non-judicial function upon its courts.

Targeting First Nations

“It’s draconian and against principles of human rights for people to be indefinitely detained in such circumstances,” Dr Hannah McGlade told Sydney Criminal Lawyers last September. “The ICCPR prohibits cruel and inhumane treatment, and this meets that standard.”

“This puts Aboriginal prisoners at increased risk of dying inside, and our state has more deaths in custody than any others,” added the Curtin University Law School Associate Professor, who’s been assisting with the constitutional challenge.

The Noongar woman was speaking just months after the laws came into play, yet she could already see the disproportionate effect they were having.

First Nations people make up 44 percent of WA’s adult prisoner population but they only account for 3 percent of the state’s overall populace.

“The Act is really punishing people for being Aboriginal, having a history of incarceration, poverties, systemic discrimination and then classifying them as ’repeat high risk serious offenders’,” the lawyer made clear in conclusion.