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Thursday, 11 September 2014

High court verdict spells the end for Australian immigration detention as we know it

High court verdict spells the end for Australian immigration detention as we know it



High court verdict spells the end for Australian immigration detention as we know it




Today’s
landmark hearing clearly set out the constitutional limits on detaining
non-citizens. The federal government will now have to release or
process thousands of asylum seekers





manus island

‘The policy of locking people up indefinitely... is unlawful under Australian law.’
Photograph: AAP








Today’s high court verdict, which dealt another blow
to the federal government’s plans to give asylum seekers temporary
protection visas, set significant new limits on Australia’s policy of
mandatory detention. It will throw into doubt the legality of detention
of thousands of people in Australia, potentially spelling the end for
Australia’s mandatory detention regime as we know it.



In the unanimous decision
handed down today, the court threw out the federal government’s
strategy of granting temporary visas to asylum seekers through a legal
loophole. Unable to get temporary protection visas through parliament,
the federal government had been granting other temporary visas which
blocked asylum seekers from applying for permanent visas, but today’s
case ruled against that practice.



More importantly, and for the first time, the court clearly set out
the constitutional limits on immigration detention. It was previously
unclear for what purposes the government could detain non-citizens. The
court has now clearly stated that the government can only lawfully
detain someone in three circumstances: to consider whether or not to let
someone apply for a visa; to consider an application for a visa; or to
remove someone.



Detention is only lawful if these purposes are being “pursued and
carried into effect as soon as reasonably practicable”, the court held.
The length of detention must be assessed by what is “necessary and
incidental” to execute and fulfil those purposes. These limits on
detention are constitutional. In other words, Parliament cannot override
them by introducing new legislation.



Today’s decision has profound implications for asylum seekers and
refugees in Australia. The detention of thousands of people who arrived
irregularly before July 2013 is now potentially unlawful and the
government will now have to either release these people or at least
resume processing. Prolonged cases of detention can be challenged before
the courts. The policy of locking people up indefinitely, without
carefully considering whether it is justified in the individual case, is
unlawful under Australian law.



The court’s decision finally provides clarity about the limits of
mandatory detention. Since 1992, the court has heard a series of cases
dealing with aspects of the issue. That year, in the case of Chu Kheng Lim,
the court held there were two limits on detention. First, it had to be
for a “legitimate purpose” – to enable a visa application to be
considered, or to remove a person from Australia. Second, detention had
to be “reasonably capable of being seen as necessary” for that purpose.



In other words, if it were not possible to remove someone, then the
detention could no longer be justified. The court said that detention
that did not meet these conditions would be unconstitutional, because it
would infringe on the exclusive power of judges to detain people.



Since then, however, the high court has tended to question or
overlook these limits. Most famously in 2004, in the much criticised
case of Al-Kateb v Godwin,
the court effectively authorised mandatory and indefinite immigration
detention in Australia. The majority in that case held that the
Migration Act required a person to be detained even if there was no
reasonable prospect of removal. The court held that this was
constitutional.



Since Al-Kateb, lawyers have challenged Australia’s detention laws in
a variety of ways – generally without success. However, in recent years
the high court has become increasingly receptive to such challenges. In
part, this is probably because in practice detention has become longer,
more routine and more extensive.



Since September 2013, the average time spent in detention facilities
in Australia has risen from 100 to 350 days, and there are currently
nearly 4,000 asylum seekers in detention facilities. These numbers don’t
include asylum seekers living in detention in the community.



Today’s case sets clear limits to the government’s power to detain
asylum seekers indefinitely, without review or consideration of
individual cases. In doing so, the high court has reaffirmed the role of
judges in reinforcing the rule of law in Australia.







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