High Court allows indefinite detention of people who cannot be forcibly deported
NEWS | Migration Justice
The High Court allows indefinite detention of people who cannot be forcibly deported - but serious questions remain
Every person – no matter their nationality or visa status – should have the same right to freedom and safety. But for years, governments have locked people in immigration detention and left them to languish indefinitely, some for over a decade.
Our government has used immigration detention to destroy people’s lives, cause lifelong physical and psychological harm, and separate families. That’s why the Human Rights Law Centre has been fighting to end indefinite immigration detention.
Last year, the High Court ruled that it was unlawful and unconstitutional for the Government to detain a person who was a stateless refugee and could not be deported to any place. This ruling secured the freedom of hundreds of people in similar situations who had been trapped in brutal detention centres for years on end. But many people remained locked up because their countries of origin refuse to accept the forced return of their citizens.
Today, the High Court ruled that the Government is not required to release a person who has the ability to consent to his own deportation but refuses to do so, because he fears harm or death in his home country.
This means that up to 200 people in a similar position to ASF17 may remain locked up for the rest of their lives. But critically, this decision does not give the government free rein to detain every person who resists deportation.
Our client Ned Kelly arrived in Australia by boat in 2013 and was detained for over a decade, navigating the defective “fast track” asylum process. In November 2023, he was finally released from detention, when the Federal Court found there was no real prospect that he could be removed. The Court found that Ned was too unwell to voluntarily assist with his own removal, without which Iran would not accept his return.
Ned intervened in ASF17 on the basis that he could have been re-detained as a result of the ruling, if he was not given a chance to argue his case.
The Court's decision today made clear that for people like Ned, who cannot consent to removal for medical, mental health or other reasons, a lack of cooperation will not justify indefinite detention.
Today, Ned is rebuilding his life with his friends and supporters in the Australian community.
The ruling comes as the Albanese Government looks to rush through draconian new laws that would criminalise non-compliance with deportation.
The Albanese Government knows that when people fear for their lives, there is no amount of time in detention that will convince them to consent to being deported. But it continues fighting tooth and nail to deny people their liberty instead of confronting the reality that indefinite detention is never acceptable, no matter the circumstances.
This is why the decision to take a person's freedom should never be left to governments and politicians alone. We will not stop fighting to end cruel detention practices until the Albanese Government fixes this flawed system, and finally gives people the chance to rebuild their lives.