In November 2023, in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor, the High Court ruled that the Australian government’s use of indefinite detention was unlawful and unconstitutional, where there was no real prospect that a person’s removal from Australia would be practicable in the reasonably foreseeable future.

In ASF17 v Commonwealth, which was heard by the High Court this week, the court will consider whether the same limitation applies to people who cannot be deported because their country of origin refuses to accept the forced return of its citizens and where the person is unable or unwilling to assist in their own deportation – either because they fear harm or because there are medical or other barriers to their removal.

Intervening within the ASF17 v Commonwealth High Court case, the HRLC said that the ruling in 2023 means that detention of a person who has “no real prospect” of being removed from Australia in the reasonably foreseeable future is unlawful.

The HRLC added that a person’s reasons for refusing to consent to their removal must be considered in determining whether their detention is lawful. It submitted that detention is not lawful when the primary barrier to the removal of refugees and asylum seekers is another country’s refusal to accept the forced return of its citizens.

This comes after lawyers voiced concerns around the Albanese government’s proposed new migration bill, the Migration Amendment (Removal and Other Measures) Bill 2024, which will grant the minister for immigration “unprecedented” new powers to require a person to do anything necessary to assist in their removal from Australia or face five-year jail terms.

Under the proposed bill, people fleeing dangerous countries will be forced to either return or face prison – under the “defective” refugee assessment process in Australia.

In 2022, multiple legal groups supported the Ending Indefinite and Arbitrary Immigration Detention Bill 2021 – calling Australia’s treatment of refugees and asylum seekers a “national shame” and “tantamount to torture” for those locked up indefinitely.

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According to the HRLC, up to 200 people from Afghanistan, Sudan, and Iran remain in long-term detention after having their protections claims reduced under the “fast-track” assessment process.

The Albanese government abolished the “fast-track” process after widespread criticism – but while this move will be effective from July this year, there are still people who have been unfairly assessed under the process and remain negatively impacted.

In other jurisdictions such as the European Union and United Kingdom, there are limits on the length of detention, including in situations where a person has not consented to their removal – something which HRLC legal director Sanmati Verma said Australia should take note of.

“Despite being locked up for a decade, our client has built a community in Australia. He has a circle of friends rallied around him. He just found a house and got a job. He is trying to rebuild his life from scratch. He should have the opportunity to do so without the threat of being thrown in detention again. He should have the opportunity to do so without the threat of being redetained.

“Whatever the reason that a person cannot be removed from Australia, indefinite immigration detention can never be the answer. People in detention are deprived of their freedom, separated from their families and communities, and routinely subjected to violence, isolation and deplorable conditions. On top of this, people are faced with the psychological burden of not knowing when, or even if, they will ever get out,” she said.

“Other countries around the world have recognised there must be limits on detention in all circumstances. Yet our government is still trying to use indefinite detention to coerce people into returning to danger. Instead of trying to find legal workarounds to keep people locked up, the Australian government should support people to rebuild their lives in freedom and safety.”