Legalising Cruelties: The Australian High Court and Indefinite Offshore Detention

‘The High Court of Australia has done its occasional bit for refugees, though much of its legal reasoning has lead to inadvertent consequences. During the Gillard years, it sank what would have been a notorious exchange of refugees with Malaysia (the “Malaysian Solution”) as one that was outside the scope of the Refugee Act and discretion of the minister of immigration.[1] On other occasions, its reasoning has bafflingly concluded that infinite detention of refugees for security grounds on a hypothetical basis is entirely legitimate.

The legal fraternity, and various NGOs were therefore curious on where the High Court would stand on the issue of Australia’s own island gulag system, which received a considerable boost under the Abbott government from 2013. It involved a case brought by a Bangladeshi woman whose imprisonment, her legal representatives claimed, had been “funded, authorised, procured and effectively controlled” by the Australian authorities. This state of affairs, they contended, was beyond the government’s constitutional powers. The legal team sought a declaration to that effect.’

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