Situation
Over 140 people have recently been released from Australian immigration detention since the High Court ruled that indefinite detention was unlawful. The national government has subsequently proceeded with deliberations on the release. Legal experts and refugee advocates have termed the government’s actions as “executive over-reach” with its attempts to “penalise” non-citizens over Australian citizens who have served their jail sentences.
The decision has highlighted extended instances of discrimination in the country and presented hindrances towards the rehabilitation of persons within the Australian society. The arbitrary detention of asylum seekers and refugees, a breach of international law, has been practiced legally since it was legalised by Australian Domestic Law in 2004.
Background
The court decision in November 2023 overturned a 20-year-old precedent. The case of Al-Kateb had authorised indefinite detention of non-citizens without valid visas, even in situations where it is impossible to deport the individuals. Chief Justice Stephen Gageler said that the justices agreed that sections of the Migration Act which had been interpreted to authorise indefinite detention were beyond legislative power.
Since 1992, Australia’s Migration Law mandatorily detains any person in Australia without a valid visa. This has had a particular impact on children, many of whom arrive in Australia on unauthorised boats. They comprise 95% of the total number of children detained in the country.
Impact
Testimonies of persons held in detention have exposed the harsh conditions they face. After a decade in immigration detention, Khalil reported to The Guardian, “I feel like my soul has come back to me because immigration detention was a cemetery and I was living in my grave. They have put everyone in the same basket whether you’re a murderer or rapist or someone with minor charges”.
Ill-treatment by security guards, including physical restraints, resulted in self-harm and suicide attempts by the inmates. The individuals expressed the heavy mental toll of being in detention without sight of their cases being decided upon. “I’ve spent years in incarceration, five of them just waiting to be deported … and now it’s embarrassing to be wearing an ankle monitor under my pants the whole time.”
The newly imposed visa conditions following the decision also include notifying the home office of any changes to the social media profiles and usernames within two days.
Yet, Josephine Langbien, a lawyer at the Human Rights Law Centre, stated, “This is a hugely significant decision, which will have life-changing consequences for people who have been detained for years without knowing when, or even if, they will ever be released. People who have lost years of their lives may finally have a chance at regaining their freedom and returning to their families and communities.”
Current Action
The overturning of the detention case doesn’t accommodate for the re-integration of persons into the community. The Chief Justice stated, “where it is not reasonably practicable to deport them in the foreseeable future – will need to be released immediately into the community”.
The high court’s decision prompted the government to proceed with the release of the detainees. About $225 million have been allocated to enforce strict visa conditions. These are argued to have been rushed through the parliament, including the requirement for the newly released immigration detainees to wear ankle monitors and stay within their homes between 10pm and 6am daily.
However, senator Nick McKim argued that the decision would result in anyone who is held in contravention of this ruling to be released. Subsequently, the government is still considering the high court’s decision such that the released individuals may be subject to visa conditions. The Solicitor General, Stephen Donaghue, has argued that this decision has and will continue to trigger “undefendable compensation claims and the release of undesirable persons into the community”.
International organisations such as Human Rights Watch and Amnesty International have in the past argued that Australia’s policy contravenes international law, particularly the UN Refugee Convention which prohibits arbitrary detention of refugees and asylum seekers. They will thus welcome this decision. However, the continued debate and uncertainty over the future of prospective detainees leaves no doubt that the fight to support detained immigrants in Australia must continue.
Vrinda Sahai
References
https://www.theguardian.com/australia-news/2023/nov/08/australia-high-court-indefinite-detention-ruling-government
https://www.theguardian.com/australia-news/2023/nov/30/stateless-man-reveals-life-after-immigration-detention-ntnfb
https://humanrights.gov.au/our-work/last-resort-summary-guide-facts-about-immigration-detention-australia
https://www.aljazeera.com/news/2023/11/14/detainees-walk-free-after-australian-high-courts-life-changing-decision
Over 140 people have recently been released from Australian immigration detention since the High Court ruled that indefinite detention was unlawful. The national government has subsequently proceeded with deliberations on the release. Legal experts and refugee advocates have termed the government’s actions as “executive over-reach” with its attempts to “penalise” non-citizens over Australian citizens who have served their jail sentences.
The decision has highlighted extended instances of discrimination in the country and presented hindrances towards the rehabilitation of persons within the Australian society. The arbitrary detention of asylum seekers and refugees, a breach of international law, has been practiced legally since it was legalised by Australian Domestic Law in 2004.
Background
The court decision in November 2023 overturned a 20-year-old precedent. The case of Al-Kateb had authorised indefinite detention of non-citizens without valid visas, even in situations where it is impossible to deport the individuals. Chief Justice Stephen Gageler said that the justices agreed that sections of the Migration Act which had been interpreted to authorise indefinite detention were beyond legislative power.
Since 1992, Australia’s Migration Law mandatorily detains any person in Australia without a valid visa. This has had a particular impact on children, many of whom arrive in Australia on unauthorised boats. They comprise 95% of the total number of children detained in the country.
Impact
Testimonies of persons held in detention have exposed the harsh conditions they face. After a decade in immigration detention, Khalil reported to The Guardian, “I feel like my soul has come back to me because immigration detention was a cemetery and I was living in my grave. They have put everyone in the same basket whether you’re a murderer or rapist or someone with minor charges”.
Ill-treatment by security guards, including physical restraints, resulted in self-harm and suicide attempts by the inmates. The individuals expressed the heavy mental toll of being in detention without sight of their cases being decided upon. “I’ve spent years in incarceration, five of them just waiting to be deported … and now it’s embarrassing to be wearing an ankle monitor under my pants the whole time.”
The newly imposed visa conditions following the decision also include notifying the home office of any changes to the social media profiles and usernames within two days.
Yet, Josephine Langbien, a lawyer at the Human Rights Law Centre, stated, “This is a hugely significant decision, which will have life-changing consequences for people who have been detained for years without knowing when, or even if, they will ever be released. People who have lost years of their lives may finally have a chance at regaining their freedom and returning to their families and communities.”
Current Action
The overturning of the detention case doesn’t accommodate for the re-integration of persons into the community. The Chief Justice stated, “where it is not reasonably practicable to deport them in the foreseeable future – will need to be released immediately into the community”.
The high court’s decision prompted the government to proceed with the release of the detainees. About $225 million have been allocated to enforce strict visa conditions. These are argued to have been rushed through the parliament, including the requirement for the newly released immigration detainees to wear ankle monitors and stay within their homes between 10pm and 6am daily.
However, senator Nick McKim argued that the decision would result in anyone who is held in contravention of this ruling to be released. Subsequently, the government is still considering the high court’s decision such that the released individuals may be subject to visa conditions. The Solicitor General, Stephen Donaghue, has argued that this decision has and will continue to trigger “undefendable compensation claims and the release of undesirable persons into the community”.
International organisations such as Human Rights Watch and Amnesty International have in the past argued that Australia’s policy contravenes international law, particularly the UN Refugee Convention which prohibits arbitrary detention of refugees and asylum seekers. They will thus welcome this decision. However, the continued debate and uncertainty over the future of prospective detainees leaves no doubt that the fight to support detained immigrants in Australia must continue.
Vrinda Sahai
References
https://www.theguardian.com/australia-news/2023/nov/08/australia-high-court-indefinite-detention-ruling-government
https://www.theguardian.com/australia-news/2023/nov/30/stateless-man-reveals-life-after-immigration-detention-ntnfb
https://humanrights.gov.au/our-work/last-resort-summary-guide-facts-about-immigration-detention-australia
https://www.aljazeera.com/news/2023/11/14/detainees-walk-free-after-australian-high-courts-life-changing-decision