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Indefinite Detention Overturned by Australian High Court

In November of 2023 the Australian High Court overturned a 20-year-old precedent regarding indefinite detention in Australia, with the majority of justices agreeing that sections of the Migration Act which had been interpreted to allow indefinite detention were beyond the actual legislative power of the act. 

A refugee leans against a wire fence overlooking the ocean with the text "Indefinite Detention" foregrounded.

As a result, parliament was required to hurriedly enact new legislation to accommodate the high court decision, introducing the legal powers to enforce ankle bracelets and curfews for the affected detainees. Nearly 150 detainees were released following the decision back into the Australian community. 

This cohort of detainees included convicted murderers and sex offenders but also others who served only short terms or had convictions for which they did not receive imprisonment and also others who had no prior convictions

The federal government has since attempted to introduce legislation which would make it illegal for any of the child sex offenders amongst the recently released cohort of 141 detainees to be within a childcare centre or school. “ At time of writing, the proposed legislation was blocked by the Coalition, leading to a Labor MP calling the opposition leader, Peter Dutton, a “protector of pedophiles.” 

Within a month of the high court’s decision and the release of the detainees, 6 detainees had been arrested for various offences. At time of writing, the ankle bracelet and curfew conditions have been removed from 2 of 3 former detainees who are now in the process of suing the Australian government. 

The NZYQ Case

In October of 2023 it was reported that a rohingya refugee, referred to under the pseudonym NZYQ, would be challenging Australia’s system of indefinite immigration detention.

NZYQ reportedly arrived in Australia by boat in September of 2012. His bridging visa was cancelled in 2015 after he pleaded guilty to sexual intercourse with a 10-year old. In May of 2018, having by then served a non-parole period of three years and four months, NZYQ was then released from prison and sent into immigration detention. 

His application for safe haven was denied as he was considered to be a danger to the Australian community. NZYQ’s legal team argued to the Australian high court that their client “may potentially be detained for life” unless it were to rule that people could only be held temporarily to facilitate their deportation. After 5 years no country had agreed to resettle NZYQ due to his prior conviction. 

In their ruling, the high court agreed that as NZYQ had been detained when there was “no real prospect of his removal from Australia becoming practicable in the reasonably foreseeable future,” his detention was indeed unlawful. 

Sources & Further Reading

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