The Refugee Council of Australia (RCOA) has welcomed the High Court’s decision that has found indefinite immigration detention to be unlawful and unconstitutional in cases where there is no prospect of people being returned.
Paul Power, CEO of RCOA, has called for the urgent review of the cases of all people in immigration detention, to enable the release of those who cannot be returned, including refugees, people fleeing war and persecution, and stateless people.
“Indefinite detention has always been morally wrong and unlawful under international human rights law. It is welcome to see the High Court start to overturn its 2004 decision of Al-Kateb and recognise that such detention should not be permitted in Australia,” Mr Power said.
“The High Court’s decision is a welcome step in abolishing the inhumane policy of indefinite detention. The High Court has recognised that such detention should not be permissible in Australia. It is time now for the Minister for Immigration to urgently review the cases of all those detained and work towards ending the policy of mandatory indefinite detention.”
In 2004, the High Court in the case of Al-Kateb held that it was constitutionally permissible to detain people indefinitely. The High Court found that the Migration Act permitted the indefinite detention of a stateless Palestinian man, and that such detention did not breach the separation of powers in the Constitution. Because Al-Kateb was a stateless Palestinian, there was no country which he could be returned to, and thus was stateless. As the Government refused to grant him a visa, the High Court interpreted the Migration Act as authorising indefinite detention, even in cases where removal was not possible. Unfortunately, many other people remain detained today with very similar cases.
The decision in the Al-Kateb case has resulted in tens of thousands of people being indefinitely detained across Australia, including thousands of children over the past 20 years. It is very welcome to see the High Court begin to reverse this awful precedent.
The average time in detention peaked at 736 days in May 2022, with 138 people detained for more than five years. The current average time in detention is still 708 days, and there are still 124 people who have been in immigration detention for more than 5 years.
“Hundreds of people continue to face years-long immigration detention without knowing when they will be released,” Mr Power said. “This High Court ruling is a vital first step in much-needed and long-awaited immigration detention reform. The Australian Government must legislate to ensure indefinite detention will never happen again, including introducing time limits on detention and an independent oversight body with the power to ensure detention is only used as a last resort.”
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