High Court to rule on detention of asylum seekers

High Court to rule on detention of asylum seekers

Wednesday, 8 March 2017

A case in the High Court today will test if the Constitution allows the Commonwealth government to detain asylum seekers brought to Australia from offshore centres, and how long that detention can last. The case is being brought by Victoria Legal Aid on behalf of two female asylum seekers brought to Australia from Nauru for medical treatment.

The law in Australia allows people seeking asylum to be detained for ‘a reasonable period’ for specific, limited, purposes. This can include their removal from Australia, or while decisions relating to visa applications are made.

‘We are asking the court if our Constitution allows the government to detain asylum seekers when they are brought to Australia for a temporary purpose. If detention is allowed by the Constitution, we want to know how long that detention can last.

‘Testing these limits is important because these people are not accused of any criminal offence and we know that detention is traumatising and very harmful to a person’s mental health.’

The case involves a mother and daughter who arrived by boat with a father and son in August 2013. They were escaping persecution in their home country of Iran, and were detained on Christmas Island and then Nauru. In November 2014, the mother and daughter were flown to Australia for medical attention while the father and son remained on Nauru.

After submissions to the High Court were filed, our clients were released into community detention where they must observe a curfew and other strict conditions. They are still receiving treatment for a range of medical issues. They don’t know what their future will hold or what will happen to them or their family members.

Dan Nicholson Executive Director Civil Justice Access and Equity at Victoria Legal Aid said the case highlighted the important role that legal aid plays in ensuring that the rule of law is respected in Australia.

‘The government is entitled to implement its immigration policies, but it cannot exceed its powers under the Constitution or other laws. It is important for all Australians that the limits of the power of the executive to detain people – who are not accused of any wrongdoing – are clarified,’ he said.

‘Although legal aid faces many challenges Australians can be proud that actions like this that aim to test the limit of government power are permitted by the intergovernmental agreement on legal assistance entered into by the Commonwealth and all the States and Territories,’ he said.

This case meets several service criteria set out in the agreement and will help clarify the law.

The full court of the High Court will hear this test case over one day. An outcome may not be known for some months.   

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