Editor's Blog

Offshore detention remains one of the most controversial issues in Australia. Although the government won the latest challenge to its regime of detaining asylum seekers offshore while their humanitarian visa claims were being considered, the High Court of Australia recently warned,“The commonwealth is not authorised ... to support an offshore detention regime which is not reasonably necessary to achieve that purpose.”

In its first decision of the year, the High Court of Australia ruled in favour of the government’s offshore detention policy effectively allowing the government to continue maintaining several offshore detention centres. Some 267 people - including 91 children - who were brought to Australia for medical treatment are now likely to be returned to an offshore detention centre. The federal government has spent more than $1 billion this financial year to house about 2200 asylum seekers in offshore detention centres.

However, the High Court has warned that the government cannot create a regime of indefinite detention offshore, that there are limits to its power to hold people and that it cannot allow people to languish in detention while interminable ‘processing’ drags on, according to a report in The Guardian which anticipates that more legal challenges will follow given the decision.

The joint decision from French CJ, Kiefel and Nettle JJ explicitly stated that “the commonwealth may only participate in that [offshore processing] regime if, and for so long as, it serves the purpose of processing”.

The Guardian reports that many asylums seekers have been held for over 900 days. This begs the question as to what time-frame is considered ‘reasonably necessary’ for the purposes of processing.

According to a Monash University report, as of 2015, there have been 38 deaths under immigration detention custody. 18 people are known or are suspected to have committed suicide in or as a result of immigration detention. 

Follow this link for a summary of the decision: http://www.hcourt.gov.au/assets/publications/judgment-summaries/2016/hca-1-2016-02-03.pdf