Indefinite detention case in High Court

The High Court will next month hear a landmark legal challenge to the Commonwealth Government’s power to hold people in immigration detention indefinitely.

Nearly 20 years ago, the High Court upheld the constitutional validity of indefinite immigration detention in Al-Kateb v Godwin. Four of the seven judges held that, provided the government maintained an intention to eventually remove a person from Australia, they could be held in detention indefinitely until that removal.

Subsequent attempts to overturn that watershed authority have failed. As a result, the time spent by people in immigration detention has increased steadily over time.

Today, the average period spent by people in immigration detention is 709 days. There are 127 people in immigration detention today who have been there for more than five years. Many of those people are stateless or owed protection by Australia, meaning that they cannot be removed.

The legal challenge, brought by a person referred to by the pseudonym NZYQ, will argue that Al-Kateb was wrongly decided, and that it is unlawful and unconstitutional to continue to detain a person who cannot be removed from Australia. 

The Human Rights Law Centre and UNSW’s Kaldor Centre for International Refugee Law have jointly applied to be heard as amici curiae (“friends of the court”) to extend the argument to people who cannot be removed for the foreseeable future, such as refugees.

The hearing will begin in the High Court on 7 November.

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