Commission commends High Court ruling on indefinite immigration detention

The Australian Human Rights Commission has welcomed yesterday’s High Court ruling which determined that Australia’s system of indefinite immigration detention is unlawful. 

The landmark decision overturns almost two decades of the practice by Australian authorities in finding it is unlawful to hold a person in immigration detention when there is no real prospect of them being removed from Australia in the foreseeable future. 

The ruling, in a case called NZYQ, brings to an end the system of indefinite immigration detention that has prevailed in Australia since 2004 when a majority of the High Court in the case of Al-Kateb v Godwin held that indefinite detention was lawful. 

Yesterday, the court made orders declaring the administrative detention of NZYQ was unlawful and requiring his release. It also held the provisions of the Migration Act 1958 (Cth) dealing with the obligation to detain an ‘unlawful non-citizen’ and the period for which they could be detained had to be read down to comply with constitutional limits.  

The orders made by the High Court in this case suggest that even if a person has committed a crime in the past and served their prison sentence, they cannot be further punished through indefinite administrative detention. Any punishment for past conduct must be determined by a court. The High Court will release its reasons for judgment at a later date. 

The immediate impact of the new ruling is that up to 92 people who have languished in immigration detention, often for many years and without any end in sight, will be entitled to be released.  

As at 31 August 2023, there were 1,056 people in immigration detention and 124 of them had been detained for more than five years. However, over the last 20 years, Australia’s system of mandatory and indefinite immigration detention has affected the lives of tens of thousands of people, most of whom came to this country seeking protection as refugees.  

President of the Australian Human Rights Commission, Emeritus Professor Rosalind Croucher AM, said: ‘For decades, Australia’s system of mandatory and indefinite immigration detention has imposed an enormous burden on thousands of vulnerable people and their families.   

“It has separated families and friends, it has caused significant physical and mental health problems, it has deprived people of hope, and it has taken away from them one of the most fundamental of human rights: the right to liberty. 

“Along with many community and civil society organisations, the Australian Human Rights Commission has long campaigned to overturn the Al-Kateb ruling and the terrible consequences that decision had for so many people and families. 

“This is a truly historic decision in terms of human rights and social justice in this country, and I thank all the people and organisations who have contributed in their own ways to bringing this about. 

“I also acknowledge the thousands of people who have endured years in immigration detention with no light at the end of the tunnel. This is their day. Those still facing indefinite detention are entitled to their freedom. Those detained when they should have been released now have the vindication that their detention was unlawful and may be entitled to restitution.”   

In relation to the NZYQ case, the Commission was granted leave by the High Court to appear as an amicus curiae and to make submissions as a ‘friend of the court’.  

ENDS | Media contact: media@humanrights.gov.au or +61 457 281 897