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High Court of Australia closes detention legal loophole

The High Court of Australia has dealt another blow to the Australian Governments who have been implementing or trying to implement processes now ruled unconstitutional. Yes, that is governments (plural) because the beginnings of much of the current situation were under the previous Labor Government.

Construction of Manus Island Regional Processing Centre continues
Source: Diac Image Library

Jan Dobson commented:

and she is right! I have found only two articles so far: both leave me with a lot of unanswered questions. This is understandable given the judgement is so recent; it may take the legal fraternity involved a little time to digest the ruling and the full implications, ramifications and possibilities. I would have expected more coverage, even so.

JDC made a very astute observation, which may well come to pass given Morrison’s recent attitude to High Court rulings.

Dr Joyce Chia, Senior Research Associate at the Andrew & Renata Kaldor Centre for International Refugee Law at UNSW, has written “High court verdict spells the end for Australian immigration detention as we know it“.

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.

I am left with questions about the asylum seekers sent to Manus Island and Nauru. As at August 31, 2014 there were  3,440 people in immigration detention facilities, and 3,038 people in community detention in Australia. Of the 3,440 in detention, 326 are held in Christmas Island and Cocos Keeling Island facilities. These numbers do NOT include the 1,233 held on Nauru or the 1,084 held on Manus Island. On top of those numbers, there are over 24,000 on Bridging Visa E. Statistics Source: Page 3, Immigration Detention Statistics August 2014.

Dr Chia does not specifically mention those people detained off-shore, restricting her analysis to the thousands held on-shore. Surely, given the High Court has ruled “… 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” there should be some questions raised on the legality or otherwise of removing people to off-shore facilities in the first place. The National Inquiry into Children in Immigration Detention 2014 has heard some shocking evidence, a sample of which was reported follows.

Child asylum seekers on Nauru are frequently bullied or threatened with rape and murder, humanitarian employees who worked in the island’s detention centre have told the Human Rights Commission.


While not directly related to the High Court ruling under discussion, it is certainly part of our overall protection visa programme considerations.

64.7% of the 3,440 people in detention centres have been held for over 365 days. The average detention time as at August 31, 2014 was 391 days. (Page 10, Statistics Source cited above). Again, excluding those in off-shore processing centres.

Are there any implications for Ranjini? I don’t know, but I do hope there may be. What of the death of Reza Barati?

What of all the people who have been kept in detention for what can now be reasonably assessed as unreasonable periods? Will those people have a case for compensation?

It is worth noting the new UN human rights chief recently criticised Australia’s policies.

“Australia’s policy of offshore processing for asylum seekers arriving by sea, and its interception and turning back of vessels, is leading to a chain of human rights violations, including arbitrary detention and possible torture following return to home countries,” he said.

Edit:  Another High Court case to be heard in October is interesting too. The UN have applied for leave to appear.

A lawyer representing the asylum seekers, George Newhouse, said on Thursday the case would test the power of the government “to intercept a boat on the high seas, hold the passengers virtually as prisoners for a month and then attempt to send them back to another country”.

This may prove to be a very interesting couple of months for the Government.


Quote from the last link above:

The process was abhorrent. The asylum seekers would have no access to legal representation, and basic questions regarding persecution, torture and trauma were not properly investigated.

One comment on “High Court of Australia closes detention legal loophole

  1. […] High Court of Australia closes detention legal loophole […]


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