This ruling of the High Court of Australia is going to make it difficult if not impossible for the current and future governments to detain people for irresponsibly long or indefinite length of time as the Abbott Government is doing and gets rid of TPVs. Great news. 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.
Posted on: Thu, 11 Sep 2014 13:35:30 +0000
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