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Indefinite detention deemed unlawful

The High Court has ruled it is unlawful and unconstitutional for the Commonwealth Government to detain people indefinitely in immigration detention.

Almost 20 years ago, the High Court upheld the constitutional validity of indefinite immigration detention in Al-Kateb v Godwin. Yesterday, a majority of judges of the Court overruled that decision. 

In this landmark legal challenge, brought by a person referred to by the pseudonym NZYQ, it was argued that Al-Kateb was wrongly decided, and that it is unlawful and unconstitutional for the Government to continue to detain a person where there is no real prospect that they could be removed from Australia. 

The decision could trigger the immediate release of 92 people, with the detention of 340 others in doubt, and with major implications for the management of detention into the future.

Today, the average period of time for which the Government holds people in immigration detention is 708 days. There are 124 people in detention who have been detained for more than five years. Many of those people have fled violence and persecution, and are stateless or owed protection by Australia, meaning that they cannot be returned to their countries of origin under international law. 

The Human Rights Law Centre (HRLC) and the University of New South Wales’ Kaldor Centre for International Refugee Law appeared as amici curiae to successfully support the arguments that indefinite detention is unlawful.

HRLC Acting Legal Director Sanmati Verma said the High Court held the Government could no longer detain people if there was no real prospect it would become practicable to remove them from Australia in the reasonably foreseeable future.

“Detention in these circumstances is unconstitutional,” Ms Verma said.

“This has life-changing consequences for people who have been detained for years without knowing when, or even if, they will ever be released.

“The Government must respect the constitutional limits of detention and act immediately to free people who have been indefinitely detained.”

Kaldor Centre Director Professor Jane McAdam said indefinite detention had always been arbitrary and unlawful under international law.

“For decades, Australia’s approach to detention has been completely out of step with that of other democratic countries. As a result of this significant decision, this will now have to change,” Professor McAdam said.

“This is an important and long-awaited victory for human rights.”

The Commonwealth Government has made no official comment on the decision.

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