Indefinite immigration detention unlawful: High Court rules

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

Nearly 20 years ago, the High Court upheld the constitutional validity of indefinite immigration detention in the case of Al-Kateb v Godwin. Today, 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 Australian Government to continue to detain a person where there is no real prospect that they could be removed from Australia.  

Subsequent to the 2004 decision, attempts to overturn it failed. As a result, the Australian Government has routinely detained people for prolonged periods of time – some for over a decade.  

Today, the average period of time for which the Australian Government holds people in immigration detention is 708 days. There are 124 people in detention today whom the Government has detained for over five years. Many of those people are stateless or owed protection by Australia, meaning that they cannot be returned to their countries of origin as a matter of international law.  

UNSW’s Kaldor Centre for International Refugee Law and the Human Rights Law Centre appeared as amici curiae – friends of the court – to successfully argue that detention is unlawful for any person the Government is unlikely to remove in the foreseeable future.   

Quotes attributable to Professor Jane McAdam AO, Director of UNSW’s Kaldor Centre for International Refugee Law:

“Indefinite detention has always been arbitrary and unlawful under international law. We welcome the High Court’s decision today, which will mean that Australia can no longer detain people for years on end. 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. 

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

Quotes attributable to Sanmati Verma, Acting Legal Director at the Human Rights Law Centre:

“Indefinite detention ends today. The High Court has overturned a two-decades-old authority that allowed the Government to lock people up in immigration detention potentially for the rest of their lives. Today, the High Court held that the Government can no longer detain people if there is no real prospect that it will become practicable to remove them from Australia in the reasonably foreseeable future. Detention in these circumstances is unconstitutional.

“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.”