Legal challenge to indefinite immigration detention begins in the High Court
The High Court will tomorrow hear a landmark legal challenge to the Australian Government’s power 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. Four of the seven judges of the Court decided that, provided the Government still intended to eventually remove a person from Australia, it could continue to detain them indefinitely – regardless of whether or when removal might be possible.
Subsequent attempts to overturn that decision have 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.
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 for the Government to continue to detain a person where there is no real prospect that they could be removed from Australia.
The Human Rights Law Centre and UNSW’s Kaldor Centre for International Refugee Law will appear at the hearing as amici curiae – friends of the court – to argue that detention is unlawful for any person the Government is unlikely to remove in the foreseeable future.
The hearing is expected to run for two days.
Quotes attributable to Abdul Khalique Baig, a former engineer, political activist and refugee community leader:
“I was detained for many years, starting in 2001 when I came to Australia seeking safety. I was a political activist in Pakistan and a coup in my country made my life unsafe. When I was in detention, I could not tell when or if I would be released and it weighed on my mind at every moment. I led hunger strikes with stateless men who feared they would be detained for the rest of their lives – we were beaten and thrown in solitary confinement to break our spirits. While I was released, others languished. The system has not changed since that time. And the wounds of detention are lifelong. The law cannot continue to inflict this injustice on people, and we must protest it – inside detention as well as outside.”
Quotes attributable to Josephine Langbien, Senior Lawyer at the Human Rights Law Centre:
“Freedom is a basic and essential right we all share. But for twenty years, the Australian Government has detained people indefinitely - potentially for the rest of their lives – simply because they don’t have a visa. Our laws have inflicted irreparable harm on the people detained, their families and whole communities. It is time for that to end.
“This case could offer hope to those people our government has detained for years without a fixed end-point or pathway to freedom.”
Quotes attributable to Professor Jane McAdam AO, Director of UNSW's Kaldor Centre for International Refugee Law:
“International law is unequivocal that indefinite detention is arbitrary and unlawful. Detention should only be used if it is absolutely necessary in an individual case and there is no reasonable alternative available. It must be for the shortest time possible and reviewable by a court. Through its policy of mandatory and possibly indefinite detention, Australia is out of step with other democratic countries.”
Media contact:
Thomas Feng
Media and Communications Manager
Human Rights Law Centre
0431 285 275
thomas.feng@hrlc.org.au
Lauren Martin
Communications Officer
Kaldor Centre for International Refugee Law, UNSW Sydney
0407 393 070
lauren.martin@unsw.edu.au