The High Court of Australia has declared that it is unlawful and unconstitutional to detain people in indefinite detention. 

The judgement overturns a two-decade-old authority that previously upheld the constitutional validity of such detention in the case of Al-Kateb v Godwin.

The landmark legal challenge, initiated by a person known as NZYQ, argued that the Al-Kateb decision was wrongly decided and that it is unlawful and unconstitutional for the Australian Government to detain individuals when there is no realistic prospect of their removal from Australia.

Subsequent attempts to overturn the Al-Kateb decision had failed, leading to the routine and prolonged detention of individuals by the Australian Government, with some held for over a decade. 

Presently, the average duration of immigration detention by the government stands at 708 days, with 124 individuals detained for over five years. 

Many of these individuals are stateless or require protection under international law, rendering their return to their countries of origin impossible.

The Human Rights Law Centre and UNSW’s Kaldor Centre for International Refugee Law provided support as friends of the court, reinforcing the argument that indefinite detention is unlawful.

Sanmati Verma, Acting Legal Director at the Human Rights Law Centre, has commented on the decision, saying; “Indefinite detention ends today”. 

“The High Court has overturned a two-decades-old authority that allowed the Government to lock people up in immigration detention potentially for the rest of their lives. 

“Today, the High Court held that the Government can no longer detain people if there is no real prospect that it will become practicable to remove them from Australia in the reasonably foreseeable future. Detention in these circumstances is unconstitutional.”

Professor Jane McAdam AO, Director of UNSW’s Kaldor Centre for International Refugee Law, said; “Indefinite detention has always been arbitrary and unlawful under international law”. 

“We welcome the High Court’s decision today, which will mean that Australia can no longer detain people for years on end. For decades, Australia’s approach to detention has been completely out of step with that of other democratic countries. 

“As a result of this significant decision, this will now have to change. This is an important and long-awaited victory for human rights."”