Goodwin-Gill memo sets out international law on indefinite detention ahead of High Court challenge
Published on the 06 Oct 2023
Understand why indefinite detention is contrary to international law and why Australian practice is such an outlier, with an explanation penned by renowned international refugee law expert, former Kaldor Centre Acting Director and UNSW Honorary Professor Guy Goodwin-Gill.
The new ‘Memo on international law and the rules governing the expulsion of non-citizens’ sets out the international law relevant to the upcoming landmark High Court challenge to the Australian government’s power to hold people in immigration detention indefinitely. The Kaldor Centre and the Human Rights Law Centre (HRLC) have jointly applied to be heard as amici curiae – friends of the court – when the hearing begins on 7 November.
In the much-criticised Al-Kateb v Godwin case nearly 20 years ago, the High Court effectively authorised mandatory and indefinite immigration detention in Australia. By a 4-3 majority, the Court held in 2004 that, provided the government maintained an intention to eventually remove a person from Australia, it was not unconstitutional to hold them in detention indefinitely until that removal took place.
Since 1993, Australia has had a policy of mandatory detention. Since September 2013, the average time spent in immigration detention facilities in Australia has risen from 100 to more than 700 days now.
Goodwin-Gill notes that the rules limiting the right to deport go back to the nineteenth century and pre-date the Constitution. Today, the fundamental right to liberty and freedom of movement is recognised in all major international and regional human rights instruments, including those to which Australia is a party.
‘In general, detention in the context of removal will be arbitrary unless it is necessary, reasonable and proportionate in the individual case,’ he writes. Because a refugee or stateless person is by definition non-removable, detaining them would appear arbitrary and inconsistent with these standards.
Because the refugee and the stateless person have no State able and willing to protect them, the role of domestic law and courts is even more essential.
Goodwin-Gill notes that a court ‘must be able to review all the circumstances of detention in order to determine whether it is necessary, as being essential to secure deportation; reasonable, as being credibly related in fact to steps actually being taken to effect removal; proportionate, given, among other matters relevant to the person concerned, the length of detention and its impact on the individual; and non-discriminatory’ – and Australian law permits none of these things.
Read the Kaldor Centre and HRLC statement.