Indefinite detention: how a human rights triumph became a battle over Australia’s borders

Indefinite detention of migrants had become a political tool over the years, analysts say, and a ‘vehicle for delivery of immense cruelty’

The High Court’s ruling that such detention was unlawful has led the government and opposition to fight over who is tougher on border control

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People walk outside the High Court building in Canberra, Australia, on November 23. Photo: AP

Published: 10:00am, 11 Dec 2023Updated: 11:47am, 11 Dec 2023

Last month, Australia’s High Court overturned what was one of the world’s most draconian practices targeting refugees and asylum seekers: the country’s policy of mandatory, indefinite immigration detention.

Decried as a breach of international human rights and a stain on Australian democracy, advocacy groups have for years tried to make successive governments dismantle the policy, which according to the nonprofit Global Detention Project also allowed children to be detained.

For two decades, the Australian government had, on national security grounds, been able to detain illegal arrivals to the country for the rest of their lives. On November 8, the High Court unanimously ruled that the government could no longer do so, in what was described as a constitutional watershed moment by the Australia-based Human Rights Law Centre.

Protesters at a pro-refugee rally in Melbourne in 2019. For two decades, the Australian government had, on national security grounds, been able to detain illegal arrivals to the country for life. Photo: EPA-EFE

Australian courts had previously allowed the government to briefly detain non-citizens before deporting them or issuing them with visas, ruling that Australia has a right to protect its sovereignty, while refugees also have the right to seek asylum.

“Over time, the use of detention strayed well away from its original purpose and came to serve as a proxy for other agendas, such as the deterrence of maritime asylum seekers and incarceration of non-citizens with an adverse security assessment,” Peter Hughes, a fellow at the Centre for Policy Development who previously worked for the immigration department, said in an analysis. “It has become a political tool … and a vehicle for delivery of immense cruelty.”