High Court Entrenches Indefinite Detention In Australian Law

Updated: Jun 24

The high court has ruled that Australia can keep people in indefinite, administrative detention.


Refugee Action Coalition Media Release 23/06/2021 In a sharply divided (4-3) decision, the High Court has upheld the government’s appeal against a single judge Federal Court, ALJ20, that had released a Syrian refugee after finding his detention was unlawful because the government was neither processing a visa nor acting to remove him.

The majority decision has found yet again, that indefinite, administrative detention of non-citizens (mostly asylum seekers and refugees) is lawful.

The High Court summary said, “The High Court, by majority, held that ss 189(1) and 196(1) validly authorise and require the detention of an unlawful non-citizen until the actual event of, relevantly, their removal from Australia or grant of a visa.

The government had already pre-empted the High Court decision by passing (with Labor support) the Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Migration Amendment Act) in May.

The combination of the High Court decision and the Clarifying International Obligations for Removal Act means many asylum seekers and refugees are essentially beyond the reach of the law, and can be held indefinitely at the discretion of the government - the government is essentially a law unto itself.

“It makes a mockery of ‘the rule of law’ when there is one law for citizens and another applies to asylum seekers and refugees,” said Ian Rintoul, spokesperson for the Refugee Action Coalition. “It is a joke that non-reviewable indefinite detention can be declared not to be punitive because it is ‘administrative’. Tell that to a refugee or an asylum seeker who has been held in detention for eight years.

"It ignores the reality of many who are held in detention who cannot be returned to their home country, and who cannot be sent anywhere else. They will now face a life sentence in detention. “It is now clearer than ever that refugees cannot rely on the courts for justice. It is protest action and people power that can free the refugees.”

For more information contact Ian Rintoul 0417 275 713