Indefinite immigration detention is unlawful, the High Court has ruled, upending a controversial decision that has guided the Australian asylum seeker policy for the last two decades.
With a majority of justices in agreement, the court overturned a 2004 determination that ruled unsuccessful asylum seekers who could not be removed to another country could lawfully be held in indefinite immigration detention.
The High Court came to it decision on Wednesday after lawyers for a detained Rohingya man from Myanmar, referred to by the pseudonym NZYQ, argued the 20-year-old ruling was wrongly decided.
Chief Justice Stephen Gageler showed concern about the lack of time frames around indefinite detention.
“The problem here is with the scenario where that which the provision is designed to achieve in fact simply will not occur, cannot occur, at least in the foreseeable future,” he told the High Court.
When told some people were less desirable to other countries because of their record or the security risk they may pose, the chief justice noted, “another way of putting that — a less attractive way of putting it — is that they are being kept in detention because of their character”.
The original, now overturned, decision involved stateless Palestinian Ahmed Ali Al-Kateb and Iraqi national Abbas Mohammad Hasan Al Khafaji, who had both arrived in 2000.
The duo had applied for Australian temporary protection visas but were rejected and asked to be returned to the Middle East.
However, the government could not reach an arrangement for another country to take them.
The two men had been in the community for 12 months at that point, but the court order determined they should be returned to detention.
Al-Kateb and Al Khafaji were quickly granted bridging visas but others since have not been so lucky.
According to the Human Rights Law Centre, the government holds people in detention for 708 days but there are currently 124 people who have been detained for more than five years, many of whom are stateless or owed protection by Australia.
With this decision, about 90 people held in a similar detention situation to the Rohingya man could soon be released.
Jane McAdam AO, director of UNSW’s Kaldor Centre for International Refugee Law, called Wednesday’s decision an “important and long-awaited victory for human rights”.
“Indefinite detention has always been arbitrary and unlawful under international law,” McAdam said.
“For decades, Australia’s approach to detention has been completely out of step with that of other democratic countries.
“This will now have to change.”
The court will publish its judgment in the coming months.
Good decision. Shame that it couldn’t have been made twenty years ago.
This decision is really significant, perhaps more so in relation to the decision of the previous High Court that allowed people to be detained indefinitely. You have to wonder about the rule of law and basic rights in this country when the previous High Court authorized the Government to lock people up and throw away the key. Call it lack of commitment or lack of creativity but this took us back centuries in terms of the development of civil and political rights in the British system.
You have to wonder as well about how the justice industry can allow these things to stand, including the sanctimonious legal profession that in its rush to chalk up billable corporate hours really does not have much of a commitment to what should be core values. Same applies to the law schools, those factories of conformity.
There are just too many things like this in our democracy at the moment, it is becoming quite frayed.
But well done the current High Court in this case!
So who is guilty of locking people up illegally, and when will they be charged and brought to trial? Just saying.
Ruddock? Charged and brought to trial? What a wondrous thing that would be.
They say the wheels of justice turn slowly, but this is ridiculous. How many deaths. How many lives ruined. How much political capital made and misery caused on the back of hateful, but lawful, decisions. From Howard to Dutton, what a congo line of suckholes.
They also say, justice delayed is justice denied.
But hey, what’s another atrocity visited on brown people matter… A drop in the ocean.
And now let’s declare the dangerous practice of turning away boats full of refugees unlawful too.