Pathway to freedom – the end of indefinite detention in Australia

By Roselina Press in conversation with Josephine Langbien | 26 Nov 23
The High Court of Australia

On 8 November, the High Court of Australia made a historic ruling: Indefinite immigration detention would now be unlawful and unconstitutional.

Human rights experts and advocates hailed the decision as a victory. For the past 20 years, Australian governments have been able to lock refugees and migrants behind bars, potentially for the remainder of their lives. Any person who was unsuccessful in getting a visa to stay in Australia, but who also couldn’t be returned to their country of origin, or sent to another country, might fall victim to this Orwellian punishment.

In parliament, however, the Court’s decision caused panic. The Albanese Government moved quickly to pass legislation that would impose visa conditions on those now eligible for release as a result of the Court’s ruling, such as curfews, electronic monitoring and mandatory jail terms if they fail to comply. This legislation has been widely criticised. David Manne, Executive Director of Refugee Legal, called it “serious government overreach”.

The Human Rights Law Centre, along with UNSW’s Kaldor Centre for International Refugee Law, contributed to the legal challenge to indefinite detention by appearing as amici curiae (friends of the court) to support arguments that indefinite detention is unlawful.

I spoke with Josephine Langbien, Senior Lawyer at the Human Rights Law Centre, about the significance of the High Court’s decision and the government’s response.

Roselina Press: Can you explain what indefinite detention is?

Josephine Langbien: Indefinite detention means exactly that – being locked up in an immigration detention centre without any timeframe or endpoint, potentially for the rest of your life, simply because you do not have a visa.

For the past 20 years, since the High Court’s decision in Al-Kateb v Godwin, it has been legal for the Australian government to detain refugees and migrants indefinitely for the supposed purpose of removal (deportation) from Australia, even where there is no real prospect that a person could actually be removed – for example because they are stateless or are owed protection obligations.

People in this situation have remained in detention for years without any pathway to freedom.

What has been the impact of indefinite detention in Australia? How many people have been detained, under what conditions, and what are the harms?

People have spent years upon years in immigration detention without knowing when, or even if, they will ever get out. Until very recently, the average period of time that the Australian government locked people in immigration detention was 708 days. More than 100 people had been detained for longer than five years.

Earlier this year, the government disclosed that one person had been locked up for 5,766 days – that is nearly 16 years.

Depriving someone of their freedom and keeping them separated from their family, friends and community is one of the most serious violations of rights that our government can inflict upon a person. Doing so without any timeframe or end point adds unimaginable psychological pressure.

Immigration detention is a dangerous and damaging place to be. Detention centres are run by private contractors who operate prisons. Physical abuse is rife, medical care is inadequate, and there is extensive evidence that long-term detention has serious impacts on mental health.

The High Court’s decision to make indefinite detention unlawful has been described as a victory for human rights. Can you tell us about the legal challenge that was brought to the High Court and why the ruling is so important? 

The High Court’s decision was an important breakthrough for the rights of migrants and refugees. A majority of the Court held that the government can no longer detain a person if there is no real prospect that the person’s removal from Australia will become practicable in the reasonably foreseeable future. Ongoing detention in these circumstances is beyond the Constitutional limits of the government’s powers.

Governments are only allowed to detain people for limited, specific purposes – including the purpose of removal. But in the plaintiff’s case, removal was not a realistic possibility, as he had no right to enter any other safe country.

The decision will have significant and life-changing consequences for people who have been arbitrarily detained by our government. As we have seen, over 100 people have already been released from detention in the weeks following the decision.

Overturning this 20-year-old authority is an important step in unpicking the legal and policy architecture which has allowed for such punitive, discriminatory treatment of migrants and refugees. But it also means that countless years of people’s lives have been wasted in indefinite immigration detention without lawful basis. This decision cannot repair the damage that has been done to people over the past decades.

Now that the Court has made this decision, what should happen to ensure people are released from detention and no one is indefinitely detained again?

The government must respect the Court’s decision and the constitutional limits of its detention powers, and ensure that every person who is currently being unlawfully detained is immediately released. If it does not do so, people will undoubtedly bring legal proceedings to secure their liberty.

Going forward, the government will need to entirely reconsider its approach to immigration detention. It is no longer feasible for the government to use detention as a way to warehouse people it does not like. It must instead focus on resolving people’s migration status fairly, quickly, and while people are in the community.

People who have been detained indefinitely are often those who have been found to be refugees, but have received an adverse assessment, for example based on past criminal convictions. But they also cannot be returned to their countries of origin, as they have a well founded fear of persecution, risk of death, or they may also be stateless. How should the immigration system be responding to these cases instead?

The government has never had the power to use immigration detention as a way to punish people or extend people’s sentences.

Every day, Australian citizens who have been convicted of a crime and have served their sentence are released into the community, because the criminal legal system is intended to allow for rehabilitation. Most people are allowed to go back to their families and communities and get on with their lives. People who happen to be migrants and refugees should not be treated any differently. 

Everyone, citizen or not, has the same right to be free from arbitrary detention at the hands of their government.  

Around 100 people have already been released into the community and more will be eligible. Opposition Leader Peter Dutton labelled them “hardcore criminals” and the Albanese Government quickly passed legislation in response, which includes electronic monitoring and greater government powers to put conditions on release. From a human rights perspective, what are your thoughts on this?

The laws rushed through Parliament will impose draconian visa conditions on people under the threat of criminal sanctions. It is a knee jerk response from the government which only further punishes the people who have just been released from indefinite immigration detention.

Mandatory visa conditions will be imposed regardless of people’s individual circumstances or whether they have any prior convictions. People will risk a year (or more) in prison for something as small as forgetting to tell the government about a new housemate or a weekend trip interstate.

The imposition of electronic monitoring and curfews will be a profound interference with people’s freedom, dignity and daily lives.

These laws subject this group of people to a harsher regime than anyone else in the Australian community, simply because they are migrants and refugees. We must reject the suggestion from politicians on both sides that people affected by this court decision are somehow at higher risk of reoffending than anyone else.

People will be living under these punitive conditions potentially forever, which will seriously impact people’s ability to rebuild their lives.

There is much to be done in the refugee rights space in Australia. What are you and the Human Rights Law Centre going to be working on next? 

Unfortunately, the politicised response to the Court’s decision means our work for people impacted by indefinite detention is far from over. We are working closely with other legal organisations to ensure that the High Court’s decision is properly implemented. This week, we were in court with our client Ned Kelly Emeralds seeking his freedom after 11 years of detention.

Beyond this, we continue to advocate for an end to offshore detention and permanent safety for all people who were subjected to it, proper access to family reunion for refugees who have been intentionally separated from their loved ones by the government, and stronger protections against workplace exploitation for migrants on temporary visas.