The High Court will next month hear a landmark legal challenge to the Australian government’s power to hold people in immigration detention indefinitely.
Nearly 20 years ago, the High Court upheld the constitutional validity of indefinite immigration detention in Al-Kateb v Godwin. Four of the seven judges of the Court held that, provided the government maintained an intention to eventually remove a person from Australia, they could be held in detention indefinitely until that removal took place.
Subsequent attempts to overturn that watershed authority have failed. As a result, the time spent by people in immigration detention has increased steadily over time.
Today, the average period spent by people in immigration detention is 709 days. There are 127 people in immigration detention today who have been there for over 5 years. Many of those people are stateless or owed protection by Australia, meaning that they cannot be removed.
The legal challenge, brought by a person who uses the pseudonym NZYQ, will argue that Al-Kateb was wrongly decided and that it is unlawful and unconstitutional to continue to detain a person who cannot be removed from Australia.
The Kaldor Centre and the Human Rights Law Centre have jointly applied to be heard as amici curiae – friends of the court – to extend the argument to people who cannot be removed for the foreseeable future, such as refugees.
The hearing will begin in the High Court on 7 November.
Abdul Khalique Baig, a former engineer, political activist and refugee community leader, said:
‘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 Sanmati Verma, Acting Legal Director at the Human Rights Law Centre:
‘It should not be possible for governments to detain people as long as they choose, based on assurances about intentions and hypothetical future events. We should be concerned that our law permits this – and has permitted it for twenty years.
‘Once we accept that migrants and people seeking asylum can be locked up forever, then we allow ourselves to tolerate any amount of cruelty and punishment directed towards them. It is time for that to end.’
Quotes attributable to Professor Jane McAdam AO, Director of UNSW's Kaldor Centre for International Refugee Law:
‘As a matter of international law, indefinite detention is arbitrary and unlawful. Detention should only be used where it is absolutely necessary in the individual case, and there is no reasonable alternative available. It must be for the shortest possible time and reviewable by a court. Australia’s longstanding practice of mandatory and potentially indefinite detention is completely out of step with the approach taken by other democratic countries.’
Quotes attributable to Hannah Dickinson, Principal Solicitor and Head of Legal of the Asylum Seeker Resource Centre:
‘In the 20 years since Al-Kateb, imprisoning refugees and migrants without end has become a linchpin of Australia’s increasingly inhumane detention regime.
‘The government practice of detaining refugees and stateless people in case removal becomes possible – a day which may never come, or may come only after years of despair forces so-called “voluntary” return to persecution – offends not only legal principles but human decency. It cannot continue.’
Quotes attributable to Arif Hussein, Supervising Senior Solicitor at the Refugee Advice and Casework Service (RACS):
‘Our immigration detention regime is one of the cruellest in the world. It is mandatory, there are no time limits and people face significant barriers in accessing legal advice.
‘This cruel and inhuman regime must end, and people must be afforded their fundamental human rights, and treated with dignity, respect and compassion.’
Quotes attributable to Alison Battisson, Director Principal and Founder of Human Rights for All:
‘Society is judged by how we treat our most vulnerable members. For the last 20 years, Australia has locked up refugees and stateless people in inhumane conditions in immigration prisons. These people have no idea when or if they will be released. This is mental torture. This torture has been enshrined in Australian laws. It is time to stand up and say enough.’
For media enquiries, please contact Lauren Martin, Kaldor Centre, 0407 393 070, firstname.lastname@example.org
Thomas Feng, Human Rights Law Centre, 0431 285 275, Thomas.email@example.com